Common use of Representations and Warranties of the Borrower Clause in Contracts

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as follows: (a) The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: 364 Day Term Loan Agreement (Becton Dickinson & Co), 364 Day Bridge Term Loan Agreement (Becton Dickinson & Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, warrants to the Lenders and the Agent that each of the following matters is true and correct as of the Effective Date (other than with respect to paragraph (l)) execution date of this Agreement and as the Drawdown Date. If it is found out that any of the Closing Daterepresentations and warranties is not true at any later date, as followsthen the Borrower will immediately notify the Lenders and the Agent of such effect in writing and bear any and all Damages, Etc. incurred by the Lenders or the Agent arising therefrom: (a) The Borrower (i) the Borrower is a corporation stock company (kabushiki-kaisha) duly organized incorporated and validly existing under the laws of the State of New Jersey and Japan; (ii) is duly qualified and in good standing the Borrower falls under the laws of New Jersey and each none of the respective states provisions stipulated from (a) to (i) in which its principal operating facilities are located, except, with respect Schedule 5 (i) and has none of relationships stipulated from (a) to this clause (e) in Schedule 5 (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect). (biii) The executionthe Borrower has all necessary and complete legal power and right to execute and perform this Agreement, delivery and the execution and performance by the Borrower of this Agreement Agreement, and the Notes (i) transactions hereunder, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge purposes of the Borrower, any and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the Articles of Incorporation and other contractual restriction binding on internal company rules of the Borrower.; (iv) the execution and performance of this Agreement, and the transactions hereunder, do not violate (a) any Laws and Ordinances which bind the Borrower, (b) the Articles of Incorporation and other internal company rules of the Borrower, and (c) No authorization any third-party contract to which the Borrower is a party or approval which binds the Borrower; (v) the person who signed or attached his/her name and seal to this Agreement on behalf of the Borrower is authorized to sign or attach his/her name and seal to this Agreement as the representative of the Borrower by all procedures necessary pursuant to the Laws and Ordinances, the Articles of Incorporation or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for internal company rules of the due execution, delivery and performance by the Borrower of Borrower; (vi) this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the constitutes legal, valid and binding obligations of the Borrower Borrower, and is enforceable against the Borrower it in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.;

Appears in 2 contracts

Sources: Syndicated Loan Agreement (Amkor Technology, Inc.), Syndicated Loan Agreement

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectYork. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) any law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132000, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of PricewaterhouseCoopers LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30, 2001, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the six months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present subject, in the consolidated case of said balance sheet as at June 30, 2001 and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132000, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (International Flavors & Fragrances Inc), Credit Agreement (International Flavors & Fragrances Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Amendment and the Credit Agreement and the Notes (i) Notes, as amended hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not (i) contravene (x) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and or performance by the Borrower of this Agreement Amendment or the Credit Agreement and the Notes, as amended hereby. (d) This Agreement and the Notes (when delivered hereunder) have Amendment has been duly executed and delivered by the Borrower. This Amendment and constitute the Credit Agreement and the Notes, as amended hereby, are legal, valid and binding obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting the enforcement of creditors' rights generally or and by general equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as whether enforcement is sought by proceedings in equity or at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustmentslaw). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (fe) There is no pending (or, to the knowledge of the Borrower’s knowledge, threatened) action threatened action, suit, investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably expected to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Amendment or the Credit Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if anyNotes, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effectamended hereby. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Five Year Credit Agreement (York International Corp /De/), Five Year Credit Agreement (York International Corp /De/)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation limited liability company (or, after a transaction contemplated by Section 5.02(b)(iii), a corporation) duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the Commonwealth of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectPennsylvania. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate organizational powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding organizational action on the Borrower or, to the knowledge part of the Borrower, and do not and will not contravene (i) the organizational documents of the Borrower, (ii) applicable law or (iii) any other contractual or legal restriction binding on or affecting the Borrowerproperties of the Borrower or any Subsidiary. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or Agreement, except any order that has been duly obtained and is (x) in full force and effect and (y) sufficient for the Notespurposes hereof. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the is a legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms, except as the enforceability thereof may be limited by equitable principles or bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceabilitygenerally. (i) The consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 2013, 2005 and the related consolidated statements of income income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, certified by Pricewaterhouse Coopers LLP, and the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 2006, and the related unaudited statement of income for the six-month period then ended, copies of which have been furnished to the Administrative Agenteach Lender, fairly present in all material respects (subject, in the case of such balance sheet and statement of income for the period ended June 30, 2006, to year-end adjustments) the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such date, all dates in accordance with generally accepted accounting principles consistently applied. GAAP; and (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132005, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) Except as disclosed in the Borrower’s Annual, Quarterly or Current Reports, each as filed with the Securities and Exchange Commission and delivered to the Lenders prior to the Effective Date, there is no pending or threatened action, investigation or proceeding affecting the Borrower or any Subsidiary before any court, governmental agency or arbitrator that may reasonably be anticipated to have a Material Adverse Effect. There is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision Subsidiary that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability against the Borrower of this Agreement or any NoteAgreement. (g) No proceeds of any Loan Advance have been or will be used directly or indirectly in connection with the acquisition of in excess of 5% of any class of equity securities that is registered pursuant to Section 12 of the Exchange Act or any transaction subject to the requirements of Section 13 or 14 of the Exchange Act. (h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower , and its Subsidiaries have filed (no proceeds of any Advance will be used to purchase or have obtained extensions carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Not more than 25% of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge value of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each assets of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effectrepresented by margin stock. (i) None The Borrower is not required to register as an “investment company” under the Investment Company Act of 1940. (j) During the twelve consecutive month period prior to the date of the execution and delivery of this Agreement and prior to the date of any Credit Extension, no steps have been taken to terminate any Plan (excluding any termination arising out of the institution by or against any ComEd Entity of any bankruptcy, insolvency or similar proceeding so long as such termination will not constitute an Event of Default or Unmatured Event of Default under Section 6.01(g)), and there is no “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA) with respect to any Plan. No condition exists or event or transaction has occurred with respect to any Plan (including any Multiemployer Plan) which might result in the incurrence by the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge other member of the Borrower, employees, agents, advisors or Affiliates is the subject Controlled Group of any sanctions material liability (other than to make contributions, pay annual PBGC premiums or economic embargoes administered pay out benefits in the ordinary course of business), fine or enforced penalty (excluding any condition, event or transaction arising out of the institution by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies against any ComEd Entity of any bankruptcy, insolvency or similar proceeding so long as such condition, event or transaction does not constitute an Event of the foregoing, Default or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”Unmatured Event of Default under Section 6.01(g)). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (Exelon Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) Each Loan Party is a corporation duly validly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the state of its incorporation, is duly qualified to do business and in good standing as a foreign corporation in each jurisdiction where the nature of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states business makes such qualification necessary and where the failure to be so qualified or in good standing qualify would not reasonably be expected to result have a Materially Adverse Effect and has full power and authority to own and hold under lease its property and conduct its business substantially as presently conducted by it. Each Loan Party has full power and authority to enter into and to perform its obligations under this Agreement and each Loan Document to which each is a party and to obtain the Advances hereunder, in a Material Adverse Effectthe case of the Borrower. (b) The execution, execution and delivery and performance by the Borrower each Loan Party of this Agreement and each Loan Document executed by it and the Notes (i) are within performance by each of its respective obligations hereunder and thereunder and the Borrower’s corporate powers, borrowings hereunder by the Borrower have been duly authorized by all necessary corporate action, do not require any Approval, do not and will not conflict with, result in any violation of, or constitute any default under, any provision of any Organic Document or material Contractual Obligation of such Loan Party (or any other material Contractual Obligation) or any present law or governmental regulation or court decree or order applicable to any Loan Party and will not result in or require the creation or imposition of any Lien in any of their respective properties pursuant to the provisions of any Contractual Obligation. (c) This Agreement is, and each Loan Document executed by any Loan Party will on the due execution and delivery thereof be, the legal, valid and binding obligation of such Loan Party enforceable in accordance with its terms, subject, as to enforcement, only to bankruptcy, insolvency, reorganization, moratorium or other similar laws at the time in effect affecting the enforceability of the rights of creditors generally, and by general equitable principles. (d) All balance sheets, statements of operations, of total owners' equity and of changes in cash flows and other financial information of the Borrower and the Consolidated Subsidiaries which have been or shall hereafter be furnished by or on behalf of the Borrower for the purposes of or in connection with this Agreement or any transaction contemplated hereby pursuant to Section 5.01(a)(i) or Section 5.01(a)(ii) (except Section 5.01(a)(i)(C)) have been or will be prepared in accordance with GAAP consistently applied throughout the periods involved (except as disclosed therein), and, in the case of information relating to coal reserves, have been or will be prepared in accordance with all relevant rules and regulations promulgated by the SEC, as in effect from time to time, and do or will present fairly the consolidated financial condition of the corporations covered thereby as at the dates thereof and the results of their operations for the periods then ended and the consolidated statements of earnings, of operations and of total owners' equity, for each of the fiscal periods then ended, of the Borrower and the Consolidated Subsidiaries (or, in the case of any such balance sheets or statements prepared prior to the date hereof, of the Borrower and its Consolidated Subsidiaries). Since December 31, 2001, there has been no occurrence which, individually or in the aggregate, would reasonably be expected to have a Materially Adverse Effect. Except as disclosed in Item 4.01(f) ("Litigation") of the Disclosure Schedule, neither the Borrower nor the Consolidated Subsidiaries have any material contingent liabilities (including any liability pursuant to the Federal Black Lung Benefits Act of 1972, as in effect from time to time) not provided for or disclosed in the financial statements of the Borrower and the Consolidated Subsidiaries most recently delivered by or on behalf of the Borrower to the Lenders. (e) Neither the Borrower nor any Subsidiary is in default, (i) in the payment of (or in the performance of any material obligation applicable to) any Indebtedness outstanding in a principal amount exceeding $10,000,000 in the aggregate; or (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) under any law or any material contractual restriction binding on governmental regulation or court decree or order which would reasonably be expected to have a Materially Adverse Effect. (f) Except as described in Item 4.01(f) ("Litigation") of the Disclosure Schedule, no litigation, arbitration or governmental investigation or proceeding against the Borrower or any Subsidiary or to which any of the properties of any thereof is subject is pending or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice threatened which would reasonably be expected to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower result in a liability in excess of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note$10,000,000. (g) No proceeds Neither the Borrower nor any Subsidiary is engaged principally, or as one of any Loan will be used directly or indirectly its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within stock, and less than 25% of the meaning assets of each consists of margin stock. Proceeds of Advances hereunder will be used in compliance with Regulation U issued by the Board of Governors of the Federal Reserve System)F.R.S. Board or any regulations substituted therefor. Terms for which meanings are provided in Regulation U of the F.R.S. Board or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower Subsidiary is not an "investment company”, or a company “controlled” by an “investment company”, " within the meaning of the Investment Company Act of 1940, as amended, or a "holding company", or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935, as amended. (i) Neither the Borrower nor any Subsidiary is a party or subject to any Contractual Obligation or Organic Document which would reasonably be expected to have a Materially Adverse Effect. (j) The Borrower and all Subsidiaries have filed all tax returns and reports required by law to have been filed by them and have paid all taxes and governmental charges thereby shown to be owing, except any such taxes or charges which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on their books. (k) During the twelve-consecutive-month period prior to the Effective Date and prior to the date of any Borrowing hereunder, (a) no steps have been taken to terminate any Pension Plan the assets of which are insufficient to satisfy all benefit liabilities thereunder (as defined in section 4001(a)(16) of ERISA) for which the Borrower or any Subsidiary could be held liable, (b) no contribution failure has occurred with respect to any Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA and (c) none of the Borrower, any Subsidiary or any member of the Controlled Group of any of them has incurred or is reasonably likely to incur any Withdrawal Liability to any Multiemployer Plan. No statement, information, report, representation, condition exists or warranty made event or transaction has occurred with respect to any Pension Plan which might result in the incurrence by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by Subsidiary of any material liability, fine or on behalf of penalty. Neither the Borrower nor any Subsidiary has any contingent liability with respect to any post-retirement benefit under a Welfare Plan, other than liability for continuation coverage described in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement Part 6 of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light Subtitle B of the circumstances under which they were made, not misleadingTitle I of ERISA. (l) The Borrower has no other Subsidiaries or Significant Subsidiaries except those identified in Item 4.01(l) ("Existing Subsidiaries and its Subsidiaries are, as Significant Subsidiaries") of the Closing Date, after giving effect Disclosure Schedule or those acquired or created subsequent to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solventdate hereof. (m) Each The Borrower and each Subsidiary owns and possesses all such patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service xxxx rights and copyrights as the Borrower considers necessary for the conduct of the businesses of the Borrower and its Subsidiaries or such Subsidiary as now conducted without any infringement upon rights of others which would reasonably be expected to have a Materially Adverse Effect. There is no individual patent or patent license used by the Borrower or any Subsidiary in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business the loss of which would reasonably be expected to have a Materially Adverse Effect. (n) The Borrower and each Subsidiary has good and marketable title to or good leasehold interests in all of its material properties and assets, real and personal, of any nature whatsoever, free and clear of all Liens except as permitted pursuant to Section 5.02(b). (o) All factual information heretofore or contemporaneously furnished by the Borrower to the Agent or the Lenders in connection with execution and delivery of this Agreement and the ownership various transactions contemplated hereby, as supplemented from time to time and when taken as a whole, to the best of its the Borrower's knowledge, has been, and all other such factual information hereafter furnished by the Borrower or any Subsidiary, as supplemented from time to time and when taken as a whole, will be, true and accurate in every material respect on the date as of which such information is dated or certified and as of the Effective Date and not incomplete by omitting to state any material fact necessary to make such information not misleading. All projections and pro forma financial information contained in any materials furnished by the Borrower or any Subsidiary to the Lender are based on good faith estimates and assumptions by the management of the Borrower or the applicable Subsidiary, it being recognized by the Lenders, however, that projections and statements as to future events are not to be viewed as fact and that actual results during the period or periods covered by any such projections or statements may differ from the projected results and that the differences may be material. (i) No facility or property (including underlying groundwater) owned or leased by the Borrower or any Significant Subsidiary is out of compliance with all applicable any Environmental Laws Law to the extent that such noncompliance, either singly or in the aggregate, has or could reasonably be expected to have a Materially Adverse Effect; (ii) There are no pending or threatened (A) claims, complaints, notices or requests for information received by the Borrower or any Significant Subsidiary with respect to any real estate asset or governing its business and the requirements alleged violation of any permits issued under such Environmental Laws with respect Law, or (B) complaints, notices or inquiries to any such real estate asset or the operations of the Borrower or any Significant Subsidiary regarding potential liability under any Environmental Law, in each case, which singly, or in the aggregate, have or could reasonably be expected to have a Materially Adverse Effect; (iii) There have been no Releases of its Subsidiaries)Hazardous Materials at, except on or under any property now or previously owned or leased by the Borrower or any Significant Subsidiary that, singly or in the aggregate, have, or could reasonably be expected to have, a Materially Adverse Effect; (iv) The Borrower and the Significant Subsidiaries have been issued and are in material compliance with all material permits, certificates, approvals, licenses and other authorizations relating to environmental matters and necessary or desirable for their businesses; (v) No property now or previously owned or leased by the Borrower or any Significant Subsidiary is listed or proposed for listing (with respect to owned property only) (i) on the CERCLIS or on any similar state list of sites requiring investigation or clean-up to the extent that such non-compliance thatlisting relates to liabilities, individually or in the aggregate, would not that could reasonably be expected to result in have a Material Materially Adverse Effect., or (ii) on the National Priorities List pursuant to CERCLA; (ivi) None of There are no underground storage tanks, active or abandoned, including petroleum storage tanks, on or under any property now or previously owned or leased by the Borrower or any Significant Subsidiary that, singly or in the aggregate, have, or could reasonably be expected to have, a Materially Adverse Effect; (vii) Neither the Borrower nor any Significant Subsidiary has directly transported or directly arranged for the transportation of its Subsidiaries any Hazardous Material to any location which is listed or proposed for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or on any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors similar state list or Affiliates which is the subject of federal, state or local enforcement actions or other investigations which may lead to material claims against the Borrower or such Significant Subsidiary for any sanctions remedial work, damage to natural resources or economic embargoes administered personal injury, including claims under CERCLA that, either singly or enforced by in the United Statesaggregate, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoinghave, or any other applicable sanctions authority (collectivelycould reasonably be expected to have, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”).a Materially Adverse Effect; (iiviii) None of There are no polychlorinated biphenyls or friable asbestos present at any property now or previously owned or leased by the Borrower or any of its Subsidiaries Significant Subsidiary that, singly or their respective directorsin the aggregate, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amendedhave, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that could reasonably would be expected to result in have, a Materially Adverse Effect; (ix) No conditions exist at, on or under any property now or previously owned or leased by the Borrower or any Lender being in breach Significant Subsidiary which, with the passage of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political officetime, or anyone else acting the giving of notice or both, would give rise to liability under any Environmental Law that, either singly or in an official capacitythe aggregate, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Lawhave, or could reasonably be expected to have, a Materially Adverse Effect; and (zx) Neither the Borrower nor any Subsidiary owns or leases any "industrial establishment" (as such term is defined in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.New Jersey Environmental Cleanup Responsibility Act, N.J.

Appears in 2 contracts

Sources: 364 Day Credit Agreement (Consol Energy Inc), Credit Agreement (Consol Energy Inc)

Representations and Warranties of the Borrower. The Each Borrower represents and warrants, as of warrants to the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, Bank as follows: (a) The representations, warranties and covenants of each Borrower made in the Loan Documents, as each may hereinafter be amended or modified, remain true and accurate and are hereby reaffirmed as of the date hereof. (ib) Each Borrower has performed, in all material respects, all obligations to be performed by it to date under the Loan Documents, as each may hereinafter be amended or modified, and no event of default exists thereunder. (c) Each Borrower is a corporation duly organized organized, qualified, and validly existing in good standing under the laws of the State of New Jersey and (ii) is duly qualified Hampshire and in good standing under all other jurisdictions in which the laws of New Jersey and each character of the respective states in which property owned or the nature of the existing business conducted by such Borrower require its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in qualification as a Material Adverse Effectforeign corporation. (bd) The execution, delivery delivery, and performance by the Borrower of this Agreement and the Notes documents relating hereto (ithe "Amendment Documents") are within the power of each Borrower and are not in contravention of law, either Borrower’s corporate powers's Articles of Incorporation, have been duly authorized By-Laws, or the terms of any other documents, agreements, or undertaking to which any Borrower is a party or by all necessary corporate actionwhich any Borrower is bound. No approval of any person, corporation, governmental body, or other entity not provided herewith is a prerequisite to the execution, delivery, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law performance by any Borrower or any material contractual restriction binding on of the Borrower or, documents submitted to the knowledge Bank in connection with the Amendment Documents to ensure the validity or enforceability thereof, or upon execution by the Bank to ensure the validity or enforceability thereof. (e) When executed on behalf of the Borrower, any other contractual restriction the Amendment Documents will constitute a legally binding on obligation of the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms; provided, except as that the enforceability of any provisions in the Amendment Documents, or of any rights granted to the Bank pursuant thereto may be limited subject to and affected by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ affecting the rights of creditors generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets and that the right of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows Bank to specifically enforce any provisions of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (Amendment Documents is subject to normal year-end adjustments)general principles of equity. (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Amendment Agreement (Pennichuck Corp), Amendment Agreement (Pennichuck Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the Commonwealth of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectPennsylvania. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding organizational action on the Borrower or, to the knowledge part of the Borrower, and do not and will not contravene (i) the organizational documents of the Borrower, (ii) applicable law or (iii) any other contractual or legal restriction binding on or affecting the Borrowerproperties of the Borrower or any Subsidiary. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or Agreement, except any order that has been duly obtained and is (x) in full force and effect and (y) sufficient for the Notespurposes hereof. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the is a legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms, except as the enforceability thereof may be limited by equitable principles or bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceabilitygenerally. (i) The consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 2013, 2005 and the related consolidated statements of income income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, certified by Pricewaterhouse Coopers LLP, and the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of June 30, 2006, and the related unaudited statement of income for the six-month period then ended, copies of which have been furnished to the Administrative Agenteach Lender, fairly present in all material respects (subject, in the case of such balance sheet and statement of income for the period ended June 30, 2006, to year-end adjustments) the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such date, all dates in accordance with generally accepted accounting principles consistently applied. GAAP; and (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132005, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) Except as disclosed in the Borrower’s Annual, Quarterly or Current Reports, each as filed with the Securities and Exchange Commission and delivered to the Lenders prior to the Effective Date, there is no pending or threatened action, investigation or proceeding affecting the Borrower or any Subsidiary before any court, governmental agency or arbitrator that may reasonably be anticipated to have a Material Adverse Effect. There is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision Subsidiary that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability against the Borrower of this Agreement or any NoteAgreement. (g) No proceeds of any Loan Advance have been or will be used directly or indirectly in connection with the acquisition of in excess of 5% of any class of equity securities that is registered pursuant to Section 12 of the Exchange Act or any transaction subject to the requirements of Section 13 or 14 of the Exchange Act. (h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower , and its Subsidiaries have filed (no proceeds of any Advance will be used to purchase or have obtained extensions carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Not more than 25% of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge value of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each assets of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effectrepresented by margin stock. (i) None The Borrower is not required to register as an “investment company” under the Investment Company Act of 1940. (j) During the twelve consecutive month period prior to the date of the execution and delivery of this Agreement and prior to the date of any Credit Extension, no steps have been taken to terminate any Plan (excluding any termination arising out of the institution by or against any ComEd Entity of any bankruptcy, insolvency or similar proceeding so long as such termination will not constitute an Event of Default or Unmatured Event of Default under Section 6.01(g)), and there is no “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA) with respect to any Plan. No condition exists or event or transaction has occurred with respect to any Plan (including any Multiemployer Plan) which might result in the incurrence by the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge other member of the Borrower, employees, agents, advisors or Affiliates is the subject Controlled Group of any sanctions material liability (other than to make contributions, pay annual PBGC premiums or economic embargoes administered pay out benefits in the ordinary course of business), fine or enforced penalty (excluding any condition, event or transaction arising out of the institution by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies against any ComEd Entity of any bankruptcy, insolvency or similar proceeding so long as such condition, event or transaction does not constitute an Event of the foregoing, Default or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”Unmatured Event of Default under Section 6.01(g)). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Exelon Corp), Credit Agreement (Exelon Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of warrants to the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as followsLender that: (a) The Borrower (i) it has been duly incorporated, validly exists and is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws jurisdiction of New Jersey its incorporation and each of the respective states jurisdiction where it carries on business and has been duly licensed to carry on business in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states all jurisdictions where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect.it is carrying on business; (b) The executionit has the power and authority to enter into, delivery execute and performance deliver and to keep, observe and perform all of the covenants, agreements and other obligations made by the Borrower of or imposed on it under this Agreement and the Notes Promissory Note (i) are within collectively, the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower.“Loan Documents”); (c) No authorization or approval or the Loan Documents and all other action by, instruments and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance agreements delivered by the Borrower of borrower to the Lender pursuant to this Agreement have been or the Notes. (d) This Agreement and the Notes (will be validly executed by it or on its behalf and, when delivered hereunder) have been duly executed and delivered and constitute to the Lender, will be legal, valid and binding obligations of the Borrower it, enforceable against the Borrower in accordance with their respective terms, except as enforcement may be limited by by; (i) applicable bankruptcy, insolvency, reorganizationmoratorium, moratorium or reorganization and similar laws relating to or limiting creditors’ at the time in effect affecting the rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied.creditors generally; and (ii) The unaudited consolidated balance sheets equitable principles which may limit the availability of certain remedies, including the remedy of specific performance; (d) the execution, delivery and performance by it of the Borrower and its Consolidated Subsidiaries Loan Documents does not contravene any material provision of any regulation, order or permit applicable to it, or cause a breach of or constitute a default under or require any consent under any agreement or instrument to which it is a party or by which it is bound except such as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph obtained; (e)) there are no suits or judicial proceedings or proceedings before any governmental commission, the consolidated board or other agency, actual, pending or to its knowledge threatened against it which involves a significant risk of a judgment or liability which, if satisfied, would have an adverse effect upon its financial position of or the Borrower and ability to meet its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject obligations under this Agreement or to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in grant the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended.Loan Documents; (f) There it is no pending (ornot in default under any guarantee, to the Borrower’s knowledgenote or other instrument evidencing any indebtedness, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except other than as disclosed in filings made writing to the Lender by the Borrower with the Securities Borrower, and Exchange Commission on to its knowledge there exists no state of facts which, after notice or before October 5lapse of time or both or otherwise, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note.would constitute such a default; and (g) No proceeds no event is outstanding which constitutes, or with notice or lapse of any Loan will be used directly time or indirectly for the purpose both would constitute, an Event of purchasing or carrying margin stock Default (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve Systemas defined below). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Loan Agreement (Lithium Exploration Group, Inc.), Loan Agreement (Lithium Exploration Group, Inc.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of warrants to the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, Lender as follows: (a) 4.1. The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) Israel. The Borrower is duly qualified to conduct its business and in good standing under has the laws of New Jersey requisite corporate power and each of the respective states in which authority and any necessary governmental authority, franchise, license or permit to own, operate, lease and otherwise to hold and operate its principal operating facilities are located, except, with respect assets and properties and to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectcarry on its businesses. (b) 4.2. The execution, delivery Borrower has the full corporate power and performance by the Borrower of authority to execute and deliver this Agreement and to consummate the Notes (i) transactions contemplated hereunder. There are within no other consents, approvals, authorizations or permits required on its part for the Borrower’s corporate powersconsummation of the transactions contemplated hereunder. The Borrower has duly and validly executed and delivered this Agreement, have been duly authorized by all necessary corporate action, which constitutes a valid and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge obligation of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. 4.3. The execution and delivery of this Agreement by the Borrower does not, and the performance by the Borrower of its obligations under this Agreement, will not (i) The consolidated balance sheets conflict with or violate the organizational documents of the Borrower and its Consolidated Subsidiaries as at September 30Borrower, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of violate any law, statute, ordinance, rule, regulation, order, judgment or decree applicable to the Borrower and or by which any of its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). properties or assets is bound or affected; (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial violate any agreement or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against arrangement the Borrower or any of its Subsidiaries before any courtsubsidiaries are party to. 4.4. The financial statements issued by the Borrower and publicly available are complete, governmental agency accurate, and fairly present the financial condition of Borrower as of the dates stated, and there have been no material adverse changes in Borrower’s financial condition since the date of the most recent financial statements. 4.5. There are no actions, suits, investigations, or arbitrator, in which there is likely to be an adverse decision proceedings pending or threatened against Borrower that (i) would could have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports ability to affect the legality, validity, binding effect or enforceability of perform its obligations under this Agreement or any NoteAgreement. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The 4.6. Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statuteslaws, regulations and orders ofregulations, and all applicable restrictions imposed byordinances, all Governmental Authoritiesand no event has occurred that could result in any material violation thereof. 4.7. Borrower is not in default under any debentures, in respect of the conduct of its business bonds, or other material obligations, and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance no event has occurred that, individually or in the aggregatewith notice and/or lapse of time, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Lawsdefault. 4.8. Except for the representations and warranties set forth in Section ‎5 herein, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or Borrower did not receive any other applicable anti-bribery representations or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) warranties from the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)Lender. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Loan Agreement (SciSparc Ltd.), Loan Agreement (SciSparc Ltd.)

Representations and Warranties of the Borrower. The Borrower hereby represents and warrants, warrants to Agent and the Banks as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, date hereof as follows: (a) The Borrower (i) is a corporation duly organized execution and validly existing under delivery of this Amendment and the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) its obligations hereunder are within the Borrower’s corporate powerspowers and authority, have been duly authorized by all necessary corporate action, action and (ii) do not and will not contravene (x) or conflict with the Borrower’s charter Certificate of Incorporation or byBy-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (cb) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance The Agreement (as amended by the Borrower of this Agreement or the Notes. (dAmendment) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and Other Agreements constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective termsterms by Agent and the Banks against Borrower, and Borrower expressly reaffirms each of its obligations under the Agreement (as amended by this Amendment) and each of the Other Agreements, including, without limitation, Borrower’s Liabilities. Borrower further expressly acknowledges and agrees that Agent has a valid, duly perfected, first priority and fully enforceable security interest in and lien against each item of Collateral except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and otherwise set forth in the Borrower’s Report on Form 10-Q for Agreement. Borrower agrees that it shall not dispute the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position validity or enforceability of the Borrower Agreement (as it was stated before and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwiseafter this Amendment) or results of operations any of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower Other Agreements or any of its Subsidiaries before respective obligations thereunder, or the validity, priority, enforceability or extent of Agent’s security interest in or lien against any courtitem of Collateral, in any judicial, administrative or other proceeding; (c) No consent, order, qualification, validation, license, approval or authorization of, or filing, recording, registration or declaration with, or other action in respect of, any governmental body, authority, bureau or agency or arbitrator, other Person is required in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower connection with the Securities and Exchange Commission on execution, delivery or before October 5, 2014performance of, or (ii) purports to affect the legality, validity, binding effect or enforceability of, this Amendment; and (d) The execution, delivery and performance of this Agreement Amendment by Borrower does not and will not violate any law, governmental regulation, judgment, order or decree applicable to Borrower and does not and will not violate the provisions of, or constitute a default or any Note. (g) No proceeds event of default under, or result in the creation of any Loan will be used directly security interest or indirectly for the purpose lien upon any property of purchasing Borrower pursuant to, any indenture, mortgage, instrument, contract, agreement or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The other undertaking to which Borrower and its Subsidiaries have filed (is a party or have obtained extensions of the time is subject or by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually real or in the aggregate, would not reasonably personal property may be expected to result in a Material Adverse Effectbound. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Loan and Security Agreement (Sigmatron International Inc), Loan and Security Agreement (Sigmatron International Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Ohio. Each Guarantor is a corporation duly organized, validly existing and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectunder the laws of the jurisdiction of its organization. (b) The execution, delivery and performance by the Borrower of this Agreement Amendment and the Notes (i) Loan Documents, as amended hereby, to which it is or is to be a party are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter charter, regulations or by-laws laws, as applicable, or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and or performance by the Borrower of this Agreement Amendment or any of the NotesLoan Documents, as amended hereby, to which it is or is to be a party. (d) This Agreement and the Notes (when delivered hereunder) have Amendment has been duly executed and delivered by the Borrower. This Amendment and constitute each of the other Loan Documents, as amended hereby, to which the Borrower is a party are legal, valid and binding obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower Amendment or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977Loan Documents, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)amended hereby. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Five Year Credit Agreement (Kroger Co), Five Year Credit Agreement (Kroger Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing and currently subsisting under the laws of the State Commonwealth of New Jersey Pennsylvania. The Borrower has all requisite power and (ii) authority to carry on its business in all material respects as now conducted and is duly qualified and to do business in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are locatedevery jurisdiction where such qualification is required, except, with respect to this clause (ii) only, in states except where the failure to be so qualified have such power, authority or qualification, individually or in good standing the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-by laws or (yii) any applicable law or any material contractual restriction binding on the Borrower or, to the knowledge of or affecting the Borrower, and will not result in or require the creation or imposition of any other contractual restriction binding on Lien prohibited by this Agreement, provided that any increase of the BorrowerCommitments in accordance with Section 2.19 shall require corporate action for the due authorization thereof prior to the effectiveness of such increase. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it, provided that any increase of the Commitments in accordance with Section 2.19 and the extension of the Termination Date in accordance with Section 2.20 shall require appropriate governmental or third party authorization thereof prior to the effectiveness of such increase or such extension, as the case may be. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30, 20132014, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of PricewaterhouseCoopers LLP, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2014, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for three months then ended, copies of which have been furnished included in the SEC Filings prior to the Administrative Agentdate hereof, fairly present present, subject, in the consolidated case of said balance sheet as at December 31, 2014, and said statements of income and cash flows for three months then ended, to year-end audit adjustments and the presentation of footnotes not required by Regulation S-X to be included in interim financial statements, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby, and there has been no change in the status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation that would have a Material Adverse Effect. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (ki) No statement, Neither the Confidential Executive Summary (other than any projections and other information of a general economic or general industry nature included therein) nor any other written information, report, representation, exhibit or warranty made report furnished by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf pursuant to the terms of this Agreement, nor any of the Borrower in connection with this Agreement or information contained in any filing made by the Borrower with the Securities and Exchange Commission (herein, when taken as a whole with all other informationwhole, including amendments and supplements then filed with on the Securities and Exchange Commission) contains date so provided, contained any untrue statement of a material fact or omits any omitted to state a material fact required to be stated therein or necessary to make the statements therein, made therein and herein not misleading in light of the circumstances under which they were made, not misleading. (lj) The Borrower and its Subsidiaries are, as All financial projections included in the Confidential Executive Summary furnished by or on behalf of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereofBorrower have been, on a consolidated basisthe date provided, Solventprepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made, it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, that no assurance can be given that any particular projection will be realized and that actual results may vary materially from projections. (mk) Each of the Borrower and its Subsidiaries No ERISA Event has occurred or is in compliance reasonably expected to occur that, when taken together with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect other such ERISA Events for which liability is reasonably expected to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregateoccur, would not reasonably be expected to result in a Material Adverse Effect. (il) Each Covered Person has implemented and maintains in effect policies and procedures designed to ensure compliance by such Covered Person and its respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Covered Persons and their respective officers and employees, and to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of the Borrower or any of its Subsidiaries Covered Persons or any of their respective directors, officers oror employees, nor to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject any agent of any sanctions Covered Persons that will act in any capacity in connection with or economic embargoes administered benefit from the credit facility established hereby, is a Sanctioned Person. No borrowing, Letter of Credit or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any use of the foregoing, proceeds thereof or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “transaction contemplated by this Agreement will violate Anti-Corruption Laws”) Laws or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)Sanctions. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (Ugi Utilities Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Waiver and Amendatory Agreement and the Notes (i) Credit Agreement as amended hereby are within the Borrower’s 's and the Guarantor's corporate powers, have been duly authorized by all necessary corporate actionaction and do not contravene (i) the charter or by-laws, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) any law or any material contractual restriction binding on or affecting the Borrower or, to or the knowledge of the Borrower, any other contractual restriction binding on the BorrowerGuarantor. (cb) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower or the Guarantor of this Waiver and Amendatory Agreement or and the NotesCredit Agreement as amended hereby. (dc) This Waiver and Amendatory Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and Credit Agreement as amended hereby, constitute the legal, valid and binding obligations of the Borrower and the Guarantor enforceable against the Borrower and the Guarantor in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (fd) There is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against affecting the Borrower Borrower, the Guarantor or any of its Subsidiaries their respective subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on may materially adversely affect the business, financial condition (financial or otherwise) or results of operations of the Borrower and its SubsidiariesBorrower, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on Guarantor or before October 5, 2014, any subsidiary thereof or (ii) which purports to affect the legality, validity, binding effect validity or enforceability of this Waiver and Amendatory Agreement or any Noteand the Credit Agreement as amended hereby. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (he) The Borrower execution, delivery and its Subsidiaries have filed (performance of this Waiver and Amendatory Agreement does not conflict with or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained violate in any filing made by manner the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies terms of any of the foregoing, Borrower's Senior Notes (or the related Senior Indenture) or Subordinated Indebtedness or in any other applicable sanctions authority (collectively, “Sanctions”, and manner affect the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None status of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to Obligations under the knowledge Credit Agreement regarding the subordination provisions of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)'s Subordinated Indebtedness. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Waiver and Eleventh Amendatory Agreement (Farm Fresh Inc), Waiver and Eleventh Amendatory Agreement (Ff Holdings Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower and the Guarantor of this Amendatory Agreement and the Notes (i) Credit Agreement as amended hereby are within the Borrower’s 's and the Guarantor's corporate powers, have been duly authorized by all necessary corporate actionaction and do not contravene (i) the charter or by-laws, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) any law or any material contractual restriction binding on or affecting the Borrower or, to or the knowledge of the Borrower, any other contractual restriction binding on the BorrowerGuarantor. (cb) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower or the Guarantor of this Amendatory Agreement or and the NotesCredit Agreement as amended hereby. (dc) This Amendatory Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and Credit Agreement as amended hereby, constitute the legal, valid and binding obligations of the Borrower and the Guarantor enforceable against the Borrower and the Guarantor in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (fd) There is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against affecting the Borrower Borrower, the Guarantor or any of its Subsidiaries their respective subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on may materially adversely affect the business, financial condition (financial or otherwise) or results of operations of the Borrower and its SubsidiariesBorrower, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on Guarantor or before October 5, 2014, any subsidiary thereof or (ii) which purports to affect the legality, validity, binding effect validity or enforceability of this Amendatory Agreement or any Noteand the Credit Agreement as amended hereby. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (he) The Borrower execution, delivery and its Subsidiaries have filed (performance of this Amendatory Agreement does not conflict with or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained violate in any filing made by manner the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies terms of any of the foregoing, Borrower's Senior Notes (or the related Senior Indenture) or Subordinated Indebtedness or in any other applicable sanctions authority (collectively, “Sanctions”, and manner affect the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None status of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to Obligations under the knowledge Credit Agreement regarding the subordination provisions of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)'s Subordinated Indebtedness. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Ff Holdings Corp), Credit Agreement (Farm Fresh Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement Agreement, the Notes or the Notesany other Loan Document to which it is a party. (d) This Agreement has been, and each of the Notes (and each of the other Loan Documents to which it is a party when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes and each of the other Loan Documents to which it is a party when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ law affecting creditors rights generally or by equitable principles relating to enforceabilitygenerally. (ie) The consolidated balance sheets Audited Statements of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows Unaudited Statements of the Borrower and its Consolidated Subsidiaries for the fiscal year then endedBorrower, copies of each of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject in the consolidated case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition condition, results of operations and cash flows of the Borrower relevant Persons and its Consolidated Subsidiaries entities, as at such date the dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such dateperiods therein indicated, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of . Since June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132003, there has been no material adverse change Material Adverse Change, except as shall have been disclosed or contemplated in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedSEC Reports. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its the Significant Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement Agreement, any Note or any Noteother Loan Document or the consummation of the transactions contemplated hereby and there has been no adverse change in the status of any Disclosed Litigation, or its financial effect on the Borrower or any of the Significant Subsidiaries from that disclosed or contemplated in the SEC Reports that could be reasonably likely to have a Material Adverse Effect. (g) The operations and properties of the Borrower and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, except as disclosed or contemplated in the SEC Reports, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect. (h) No proceeds ERISA Event has occurred or is reasonably expected to occur with respect to any Plan. (i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status. (j) Neither the Borrower nor any Loan will ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan. (k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be used directly in reorganization or indirectly to be terminated, within the meaning of Title IV of ERISA. (l) Except as set forth in the financial statements referred to in subsection (e) above, the Borrower and its Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106. (m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). , and no proceeds of any Revolving Credit Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock; and after applying the proceeds of each Revolving Credit Advance hereunder, margin stock (hwithin the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) The constitutes less than twenty-five percent (25%) of the value of those assets of the Borrower and its Subsidiaries have filed (which are subject to any limitation on sale or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all pledge, or any other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effectrestriction hereunder. (in) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred is, or after the making of any liabilityRevolving Credit Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other than premiums payable in the ordinary course of businesstransactions contemplated hereby, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not will be, an "investment company", or a company “controlled” by an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company”, " (within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (iio) None The Borrower is a "public utility company" and a "subsidiary company" of MichCon Holdings, Inc., which is a "holding company" and a "subsidiary company" of Enterprises, which is a "holding company" and "subsidiary company" of DTE Energy, which is a "holding company" as such terms are defined in the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), and such "holding companies" and the Borrower are currently exempt from the provisions of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of 1935 Act (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”except Section 9 thereof). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Michigan Consolidated Gas Co /Mi/), Credit Agreement (Michigan Consolidated Gas Co /Mi/)

Representations and Warranties of the Borrower. 4.1 The Borrower represents and warrantswarrants that, and, so long as this General Security Agreement remains in effect, will be deemed to continuously represent and warrant that: 4.1.1 this General Security Agreement has been authorized, executed and delivered in accordance with resolutions of the Effective Date directors (other than with respect to paragraph (l)) and as of the Closing Date, shareholders as follows: (aapplicable) The Borrower (i) is a corporation duly organized and validly existing under the laws of the State Borrower and all other matters and things have been done and performed so as to authorize and make the execution and delivery of New Jersey and (ii) is duly qualified and in good standing under this General Security Agreement, the laws of New Jersey and each creation of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement security constituted hereby and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge performance of the Borrower's obligations hereunder, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of binding; 4.1.2 the Collateral is genuine and is owned by the Borrower free of all security interests, mortgages, liens, claims, charges and other encumbrances (herein collectively called "Encumbrances"), save for the security constituted by this General Security Agreement and the Senior Secured Parties; 4.1.3 the Borrower has good and lawful authority to create the security in the Collateral constituted by this General Security Agreement; 4.1.4 each Debt, Chattel Paper and Instrument included in Collateral is enforceable in accordance with its terms against the party obligated to pay the same (the "Account Borrower"), and the amount represented by the Borrower to the Lender from time to time as owing by each Account Borrower or by all Account Debtors will be the correct amount actually and unconditionally owing by such Account Borrower or Account Debtors, except for normal cash discounts where applicable, and no Account Borrower will have any defense, set off, claim or counterclaim against the Borrower which can be asserted against the Lender, whether in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating any proceeding to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of enforce the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial Collateral or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended.; (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws 4.1.5 with respect to any real estate asset Goods (including Inventory) comprised in the Collateral, the locations specified in the Location Schedule are accurate and complete (save for Goods in transit to such locations and Inventory on lease or governing its business consignment) and all fixtures or Goods about to become fixtures which form part of the requirements Collateral will be situate at one of any permits issued under such Environmental Laws the locations specified in the Location Schedule; and 4.1.6 with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or Securities comprised in the aggregateCollateral, would not reasonably be expected to result in a Material Adverse Effect. (i) None of including without limitation the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of share certificates representing the Borrower, employees, agents, advisors or Affiliates is 's direct and indirect holdings in the subject of any sanctions or economic embargoes administered or enforced by the United Statesmaterial Subsidiaries, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result locations specified in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering LawsLocation Schedule are accurate and complete.

Appears in 2 contracts

Sources: General Security Agreement (Commercial Consolidators Corp), General Security Agreement (Commercial Consolidators Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No consent, authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or any Loan Document to which it is a party, other than the Notesorder of the Federal Energy Regulatory Commission, dated May 12, 2005, which has been obtained and permits the transactions contemplated by the Loan Documents and remains in full force and effect. (d) This Agreement has been, and each of the Notes (when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ law affecting creditors rights generally or by equitable principles relating to enforceabilitygenerally. (ie) The consolidated balance sheets Audited Statements of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows Unaudited Statements of the Borrower and its Consolidated Subsidiaries for the fiscal year then endedBorrower, copies of each of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject in the consolidated case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition condition, results of operations and cash flows of the Borrower relevant Persons and its Consolidated Subsidiaries entities, as at such date the dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such dateperiods therein indicated, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of applied as in effect on the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as date of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Audited Statements or Unaudited Statements, as applicable. Since September 30December 31, 20132004, there has been no material adverse change Material Adverse Change, except as shall have been disclosed or contemplated in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedSEC Reports. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect other than the business, condition matters disclosed or contemplated in the SEC Reports (financial or otherwisethe "Disclosed Litigation") or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement any Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status or financial effect on the Borrower or any Noteof its Significant Subsidiaries, of the Disclosed Litigation from that disclosed or contemplated in the SEC Reports that could be reasonably likely to have a Material Adverse Effect. (g) The operations and properties of the Borrower and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing material obligations or costs, except as disclosed or contemplated in the SEC Reports, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect. (h) No proceeds ERISA Event has occurred or is reasonably expected to occur with respect to any Plan. (i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status. (j) Neither the Borrower nor any Loan will ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan. (k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be used directly in reorganization or indirectly to be terminated, within the meaning of Title IV of ERISA. (l) Except as set forth in the financial statements referred to in subsection (e) above, the Borrower and its Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106. (m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). , and no proceeds of any Revolving Credit Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock; and after applying the proceeds of each Revolving Credit Advance hereunder, margin stock (hwithin the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) The constitutes less than twenty-five percent (25%) of the value of those assets of the Borrower and its Subsidiaries have filed (which are subject to any limitation on sale or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all pledge, or any other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effectrestriction hereunder. (in) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred is, or after the making of any liabilityRevolving Credit Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other than premiums payable in the ordinary course of businesstransactions contemplated hereby, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not will be, an "investment company", or a company “controlled” by an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company”, " (within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (iio) None The Borrower is a "public utility company" and a "subsidiary company" of DTE Energy, which is a "holding company" as such terms are defined in the 1935 Act, and such "holding company" and the Borrower are currently exempt from the provisions of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of 1935 Act (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”except Section 9 thereof). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Detroit Edison Co), Five Year Credit Agreement (Detroit Edison Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Iowa and is duly qualified to do business and is in good standing as a foreign corporation under the laws of each of the respective states state in which the ownership of its principal operating facilities are locatedproperties or the conduct of its business makes such qualification necessary, except, with respect to this clause (ii) only, in states except where the failure to be so qualified or in good standing would not reasonably be expected to result in have a Material Adverse Effect, and each Material Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized. (b) The execution, delivery and performance by the Borrower of this Agreement each Loan Document, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, powers and have been duly authorized by all necessary corporate action, . Each Loan Document has been duly executed and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on delivered by the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or any Loan Document, other than such Governmental Approvals that have been duly obtained and are in full force and effect, which as of the Notesdate hereof include: Letter Order issued March 29, 2022, in Docket No. ES22-26-000, by the FERC. (d) This Agreement The execution, delivery and performance by Borrower of the Notes Loan Documents will not (when delivered hereunderi) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with, or result in a breach of or constitute a default under, any contract, agreement, indenture or instrument to which the Borrower or any of its Material Subsidiaries is a party or by which any of its or their respective properties is bound or (iii) result in the creation or imposition of any Lien on the property of Borrower or any of its Material Subsidiaries other than Permitted Liens and Liens required under this Agreement, except to the extent such conflict, breach or default referred to in the preceding clause (ii), individually or in the aggregate, would not reasonably be expected to have been duly executed and delivered and constitute a Material Adverse Effect. (e) Each Loan Document is the legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or bankruptcy and similar laws relating to or limiting affecting the enforcement of creditors’ rights generally or and by the application of general equitable principles relating to enforceabilityprinciples. (if) The Borrower and each Material Subsidiary are in compliance with all Applicable Laws (including Environmental Laws), except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect. (g) There is no action, suit, proceeding, claim or dispute pending or, to the Borrower’s knowledge, threatened against or affecting the Borrower or any of its Material Subsidiaries, or any of its or their respective properties or assets, before any Governmental Authority that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. There is no injunction, writ, preliminary restraining order or any other order of any nature issued by any Governmental Authority directing that any material aspect of the transactions expressly provided for in any of the Loan Documents not be consummated as herein or therein provided. (h) The consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132021, and the related consolidated statements of income and income, cash flows of the Borrower and its Consolidated Subsidiaries stockholders’ equity for the fiscal year then endedended on such date, certified by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Administrative AgentAgent and each Lender, present fairly present in all material respects the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date date, and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. . All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as may be disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve Systemtherein). (hi) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxesSince December 31, assessments and governmental charges which have become due2021, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) no event has occurred that could reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”and each Material Subsidiary have filed or caused to be filed all U.S. Federal and other material tax returns that are required by Applicable Law to be filed, and have paid all taxes shown to be due and payable on said returns or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty on any assessments made by the Borrower in this Agreement or furnished to the Administrative Agent against it or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property property; other than (including compliance with all applicable Environmental Laws i) with respect to any real estate asset taxes the amount or governing its business validity of which is currently being contested in good faith by appropriate proceedings and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or which reserves in conformity with GAAP have been provided on the operations books of the Borrower or any of its Subsidiaries)the applicable Material Subsidiary, except such non-compliance thatas the case may be, individually or in (ii) to the aggregate, would extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect. (ik) None No ERISA Event has occurred other than as would not, either individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. There are no actions, suits or claims pending against or involving a Pension Plan (other than routine claims for benefits) or, to the knowledge of the Borrower or any of its Subsidiaries ERISA Affiliates, threatened, that would reasonably be expected to be asserted successfully against any Pension Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate to have a Material Adverse Effect. No lien imposed under the Internal Revenue Code or ERISA on the assets of the Borrower or any of its ERISA Affiliates exists or is likely to arise with respect to any Pension Plan. The Borrower and each of its Subsidiaries have complied with foreign law applicable to its Foreign Plans, except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect. (l) The Borrower is not engaged in the business of extending credit for the purpose of buying or carrying Margin Stock, and no proceeds of any Loan will be used to extend credit to others for the purpose of buying or carrying any Margin Stock. Following the application of the proceeds of any Extension of Credit, not more than 25% of the value of the assets of the Borrower and the Material Subsidiaries that are subject to the restrictions of Section 5.02(a) or (c) constitute Margin Stock. (m) Neither the Borrower nor any Subsidiary is an “investment company” or a company “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended. (n) There are no claims, liabilities, investigations, litigation, notices of violation or liability, administrative proceedings, judgments or orders, whether asserted, pending or threatened, relating to any liability under or compliance with any applicable Environmental Law, against the Borrower or any Material Subsidiary or relating to any real property currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary, that would reasonably be expected to have a Material Adverse Effect. No Hazardous Materials have been or are present or are being spilled, discharged or released on, in, under or from property (real, personal or mixed) currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary in any quantity or manner violating, or resulting in liability under, any applicable Environmental Law, which violation or liability would reasonably be expected to have a Material Adverse Effect. (o) No written statement or information furnished by or on behalf of the Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or delivered pursuant hereto, in each case as of the date such statement or information is made or delivered, as applicable, contained or contains, any material misstatement of fact or intentionally omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading. (p) Each Material Subsidiary as of the date hereof is set forth on Schedule III. (q) The Borrower has implemented and maintains in effect policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers orand employees with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and, to the knowledge of the Borrower, employeestheir respective officers, agentsdirectors and employees and their respective agents that will act in any capacity in connection with or benefit from the credit facility established hereby, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other are in compliance with Anti-Corruption Laws and applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) in all material respects. None of the Borrower or any Subsidiary is a Sanctioned Person. No Borrowing or Letter of its Subsidiaries Credit, use of proceeds or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans transaction contemplated by this Agreement will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of violate any Anti-Corruption Law, Law or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawsapplicable Sanctions.

Appears in 2 contracts

Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)

Representations and Warranties of the Borrower. The In order to induce the Administrative Agent and the Lenders party hereto to enter into this Amendment, the Borrower represents and warrantswarrants to the Administrative Agent and the Lenders that the following statements are true, as of the Effective Date (other than with respect to paragraph (l)) correct and as of the Closing Date, as followscomplete: (a) The Borrower (i) the Borrower has the requisite power and authority to make, deliver and perform its obligations under the Amendment Documents to which it is a corporation duly organized and validly existing under the laws of the State of New Jersey and party; (ii) is duly qualified the execution and in good standing under delivery of this Amendment and the laws of New Jersey and each performance of the respective states in Amendment Documents to which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) is a party are within the Borrower’s corporate powers, partnership powers and have been duly authorized by all necessary corporate action, partnership or other organizational action on the part of the Borrower; (iii) the execution and delivery of this Amendment and the performance of the Amendment Documents to which the Borrower is a party (iia) do not contravene require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (xb) will not violate any applicable law or regulation or the Borrower’s charter or any order, judgment or decree of any Governmental Authority, by-laws or (y) law other organizational documents of the Borrower or any material contractual restriction binding on the Borrower orof its Subsidiaries, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization will not violate or approval result in a default under any material indenture, loan agreement, credit agreement, promissory note, letter of credit or other action byagreement binding upon the Borrower or any of its Subsidiaries or its assets, and no notice or give rise to or filing with, a right thereunder to require any governmental authority or regulatory body is required for the due execution, delivery and performance payment to be made by the Borrower or any of this Agreement or the Notes. its Subsidiaries, and (d) This Agreement and will not result in the Notes creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries (when delivered hereunderother than Liens created under the Loan Documents); (iv) have this Amendment has been duly executed and delivered by the Borrower and constitute each of the Amendment Documents to which the Borrower is a party constitutes a legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws relating to or limiting affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or by equitable principles relating to enforceability.at law; (iv) The consolidated balance sheets of the Borrower representations and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial warranties made or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings deemed made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or Parties in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance Credit Agreement are true and correct in all material respects with(other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and has been administered correct in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (jrespects) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), Amendment Effective Date except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (vi) no Default or territory Event of Default has occurred and is continuing or will result from the subject consummation of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate transactions contemplated by the USA PATRIOT Act or any Anti-Money Laundering LawsAmendment Documents.

Appears in 2 contracts

Sources: Omnibus Amendment and Waiver, Omnibus Amendment and Waiver (Four Corners Property Trust, Inc.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of warrants on the Effective Date (other than and, solely with respect to paragraph the Specified Representations (l)i) on the Funding Date and as of (ii) to the Closing extent required by Section 2.16, on the Maturity Date, ) as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the state of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) Notes, if any, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate organizational powers, have been duly authorized by all necessary corporate organizational action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws (or other equivalent organizational documents) or (yii) except where such contravention would not reasonably be expected to have a Material Adverse Effect, any law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes, if any, except as would not reasonably be expected to have a material adverse effect on the validity or enforceability of this Agreement or the Notes, if any, or the material rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder. (d) This Agreement has been, and each of the Notes (Notes, if any, when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. Assuming that this Agreement has been duly executed by the Administrative Agent and constitute each of the Lenders, this Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to (i) bankruptcy, insolvency, reorganization, moratorium or and other similar laws relating to of general application affecting the rights and remedies of creditors and (ii) general principles of equity, regardless of whether applied in proceedings in equity or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 2013, 2012 and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to made publicly available on the Administrative AgentSEC’s XXXXX system website, fairly present present, in all material respects, the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedGAAP. (f) There is no pending or (or, to the knowledge of the Borrower’s knowledge) threatened action, threatened) action investigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries which has not been disclosed in the Borrower’s most recent Annual Report on Form 10-K or subsequent Quarterly Reports on Form 10-Q filed with the SEC on or prior to the date hereof before any court, governmental agency or arbitrator, arbitrator that is initiated by any Person other than a Lender in which there is likely to be an adverse decision that its capacity as a Lender (i) would that is reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) that purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteLoan Document and as to which there is a reasonable possibility of an adverse decision. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)Since December 31, 2012, there has been no Material Adverse Change. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”Investment Company, or a company “controlled” by an “investment company”, within the meaning of as such term is defined in the Investment Company Act of 1940, as amended. (ki) No statement, information, report, representation, or warranty made part of the proceeds of any Loans will be used by the Borrower in this Agreement any manner that would result in a violation of Regulation U or furnished to X, issued by the Administrative Agent or any Lender by or Board of Governors of the Federal Reserve System. (j) Set forth on behalf Schedule 4.01(j) hereof is a list of Subsidiaries of the Borrower in connection with this Agreement or contained in any filing made by that, for the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light most recent fiscal quarter of the circumstances under which they were madeBorrower, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would together with the Borrower, accounted for not reasonably be expected to result in a Material Adverse Effectless than 65% of total revenues and sales as shown on the Consolidated financial statements of the Borrower for such fiscal quarter. (ik) None of the Borrower Borrower, any of its Restricted Subsidiaries, or any of its Subsidiaries the Borrower’s directors or any of their respective directorsofficers, officers ornor, to the knowledge of the Borrower, employeesany directors or officers of any of the Borrower’s Restricted Subsidiaries, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies Office of any Foreign Assets Control of the foregoing, U.S. Department of the Treasury (“OFAC”) (including by being listed on the list of Specially Designated Nationals and Blocked Persons issued by OFAC) or any other applicable sanctions authority the U.S. Department of State (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) . None of the Borrower nor its Restricted Subsidiaries is located, organized or any resident in a country or territory that is the subject of its Subsidiaries or their respective directors, officers or employees or, to the knowledge Sanctions. No part of the Borrower, agents, advisors or Affiliates acting for or on behalf proceeds of the Loans shall be used by the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the . The Borrower and each of its Restricted Subsidiaries and Affiliates has instituted and maintained policiesis in compliance, procedures and a system of internal controls designed to promote and achieve compliance with in all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctionsmaterial respects, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering LawsAct.

Appears in 2 contracts

Sources: Bridge Credit Agreement (Verizon Communications Inc), Bridge Credit Agreement

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, subject to any applicable debt limitations established by the Board of Directors of the Borrower, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132009, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at September 30, 2010, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the nine months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present in all material respects, subject, in the consolidated case of said balance sheet as at September 30, 2010, and said statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of . Except as disclosed in filings with the Borrower Securities and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished Exchange Commission prior to the Administrative Agentdate hereof, fairly presentsince December 31, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132009, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as is not disclosed in filings made a filing by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, and could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Following application of the proceeds of each Advance, not more than 25 percent of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated basis) that are subject to a restriction on sale, pledge, or disposal under this Agreement will be represented by margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (At&t Inc.), Credit Agreement (At&t Inc.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectArizona. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) each other Loan Document to which it is or will be a party are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter Certificate of Incorporation, Bylaws or by-laws other governance documents or (yii) any law or any material contractual restriction binding on or affecting the Borrower oror any of its properties, and do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to the knowledge any of the Borrower, any other contractual restriction binding on the Borrowerits properties. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required by the Borrower for the due execution, delivery and performance by the Borrower of this Agreement or the Notesany other Loan Document to which it is or will be a party. (d) This Agreement and each other Loan Document to which the Notes (Borrower is or will be a party when delivered hereunder) have been duly executed and delivered and constitute the hereunder will be, legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 2013, 2011 and the related statements of income income, cash flow and cash flows capital of the Borrower and its Consolidated Subsidiaries for the fiscal year periods then ended, copies of which have been furnished to the Administrative AgentLender, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, 2011 there has been no material adverse change in the business, such condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedoperations. (f) The Borrower’s resolutions have been duly adopted, are accurate and correct, are in full force and effect and shall continue in full force and effect so long as the Loan is outstanding. (g) The Borrower has, independently and without reliance as to any matter upon the Lender, and based upon such documents and information as it has deemed appropriate, made its own credit analysis and credit decision to enter into this Agreement and the other Loan Documents. (h) No proceeds of the Loan will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, as amended, and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (i) There is no pending (or, to the best of the Borrower’s knowledge, threatened) , action or proceeding against affecting the Borrower Borrower, any of its shareholders or employees or any of its Subsidiaries properties before any court, governmental agency or arbitrator, in arbitrator (x) that is of a type of which there the Lender is likely required to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwisenotified under Section 6.01(d)(iii) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, (iv) hereof or (iiy) that purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Note. (g) No proceeds of any Loan Document to which the Borrower is or will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Planparty. (j) The Both immediately before and after giving effect to the receipt of the Loan, the Borrower is not an and will be investment company”, or a company “controlledsolventby an “investment company”, within the meaning meaning, and for the purposes, of the Investment Company Act of 1940, as amendedFederal Bankruptcy Code. (k) No statement, information, report, representation, Event of Default or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities Default has occurred and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingis continuing. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Term Loan Agreement (Arcadia Biosciences, Inc.), Term Loan Agreement (Arcadia Biosciences, Inc.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No consent, authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or any Loan Document to which it is a party, other than the Notesorder of the Federal Energy Regulatory Commission, dated June 5, 2019, which has been obtained and permits the transactions contemplated by the Loan Documents and remains in full force and effect. (d) This Agreement has been, and each of the Notes (when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ law affecting creditors rights generally or by equitable principles relating to enforceabilitygenerally. (ie) The consolidated balance sheets Audited Statements of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then endedBorrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present present, in all material respects, the consolidated Consolidated financial condition condition, results of operations and cash flows of the Borrower relevant Persons and its Consolidated Subsidiaries entities, as at such date the dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such dateperiods therein indicated, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of applied as in effect on the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as date of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Audited Statements. Since September 30December 31, 20132019, there has been no material adverse change Material Adverse Change, except as shall have been disclosed or contemplated in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedSEC Reports. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect other than the business, condition matters disclosed or contemplated in the SEC Reports (financial or otherwisethe “Disclosed Litigation”) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement any Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status or financial effect on the Borrower or any Noteof its Significant Subsidiaries, of the Disclosed Litigation from that disclosed or contemplated in the SEC Reports that could be reasonably likely to have a Material Adverse Effect. (g) The operations and properties of the Borrower and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing material obligations or costs, except as disclosed or contemplated in the SEC Reports, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect. (h) No proceeds ERISA Event has occurred or is reasonably expected to occur with respect to any Plan. (i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status. (i) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan and (ii) none of the Borrower and its Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of the Plan Asset Regulations), and neither the execution, delivery or performance of the transactions contemplated hereby, including the making of any Loan hereunder, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Internal Revenue Code. (k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be used directly in reorganization or indirectly to be terminated, within the meaning of Title IV of ERISA. (l) Except as set forth in the financial statements referred to in subsection (e) above, the Borrower and its Subsidiaries have no material liability with respect to “expected post retirement benefit obligations” within the meaning of Statement of Financial Accounting Standards No. 106. (m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). , and no proceeds of any Credit Extension will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock; and after applying the proceeds of each Credit Extension hereunder, margin stock (hwithin the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) The constitutes less than twenty-five percent (25%) of the value of those assets of the Borrower and its Subsidiaries have filed (which are subject to any limitation on sale or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all pledge, or any other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effectrestriction hereunder. (in) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred is, or after the making of any liabilityCredit Extension or the application of the proceeds or repayment thereof, or the consummation of any of the other than premiums payable in the ordinary course of businesstransactions contemplated hereby, will be, required to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not be registered as an “investment company”, or a company an controlledaffiliated personby of, or “promoter” or “principal underwriter” for, an “investment company”, ” (within the meaning of the Investment Company Act of 1940, as amended). (ko) No statementThe Borrower has implemented and maintains in effect policies and procedures designed to ensure, informationin its reasonable judgment, report, representation, or warranty made compliance in all material respects by the Borrower in this Agreement or furnished Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and to the Administrative Agent or any Lender by or on behalf knowledge of the Borrower its directors and agents, are in connection compliance with this Agreement or contained Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each Subsidiary of the Borrower and its Subsidiaries is in compliance with all applicable statutesor, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of to the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations knowledge of the Borrower or any of its Subsidiaries)such Subsidiary, except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers oror employees, or (b) to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of its Subsidiaries proceeds or their respective directors, officers other transaction contemplated by this Agreement will violate Anti-Corruption Laws or employees or, to applicable Sanctions. (p) Neither the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf Borrower nor any Subsidiary of the Borrower (i) is under investigation by any Governmental Authority for, or its Subsidiaries has engaged in any activity been charged with, or conduct which would constitute a material violation of (x) any Sanctions Lawsconvicted of, (y) the United States Foreign Corrupt Practices Act of 1977money laundering, as amendeddrug trafficking, terrorist-related activities, or any other applicable anti-bribery violation under any laws or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or relating to money laundering lawsor terrorist financing, rulesincluding the Bank Xxxxxxx Xxx, regulations or orders 00 X.X.X. §§0000 et. seq. (collectively, the “Anti-Money Laundering Laws”). , (ii) has been assessed civil penalties under any Anti-Money Laundering Laws, or (iii) Each has had any of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and funds seized or forfeited in an action under any Anti-Money Laundering Laws. (ivq) No part The Borrower is not an Affected Financial Institution. (r) As of the proceeds of Effective Date, the Loans will be used, directly information included in the Beneficial Ownership Certification provided on or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory prior to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected Effective Date to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting connection with this Agreement is true and correct in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawsall respects.

Appears in 2 contracts

Sources: Term Loan Credit Agreement (DTE Electric Co), Term Loan Credit Agreement (DTE Electric Co)

Representations and Warranties of the Borrower. The ---------------------------------------------- Borrower represents and warrants, as of warrants to the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, Banks as follows: (a1) The Borrower (i) is a corporation duly organized and incorporated, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Delaware and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, either is qualified to do business and in states good standing in each jurisdiction where the ownership of its properties or the conduct of its business requires such qualification or is subject to no material liability or disability by reason of the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectany such jurisdiction. (b2) The Borrower has all corporate power and authority, governmental permits, licenses, consents, authorizations, orders and approvals and other authorizations as are necessary to carry on its business substantially as presently conducted except for such of the foregoing the absence of which would not, in the aggregate, subject the Borrower to any material liability or disability. (3) The execution, delivery and performance of the Bank Credit Documents, and borrowings thereunder by the Borrower, are within its corporate power and authority and have been duly authorized by all necessary corporate proceedings. (4) Neither such authorization nor the execution, delivery and performance by the Borrower of the Bank Credit Documents, nor any borrowing thereunder by the Borrower when made, will conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of any law or any regulation, order, writ, injunction or decree of any court or governmental authority or of the Certificate of Incorporation or By-Laws of the Borrower or result in the violation or contravention of, or the acceleration of any obligation under, or cause the creation of any Lien on any of the properties of the Borrower pursuant to the provisions of, any indenture, agreement or other instrument to which it is a party or by which it is bound. (5) Assuming their due execution by the Banks and the Agent, each of this Agreement and the Notes (i) are within the Borrower’s corporate powersOther Agreement constitutes a legal, have been duly authorized by all necessary corporate action, valid and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge agreement of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (both as defined hereunder and under the Other Agreement), when delivered hereunder) have been duly executed on behalf of the Borrower and delivered in accordance with this Agreement and the Other Agreement, will constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms(subject, except as may be limited by to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, reorganization, moratorium or similar other laws relating to or limiting affecting creditors' rights generally or by equitable from time to time in effect and to general principles relating to enforceabilityof equity). (ib) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as of June 30December 31, 2014 1996 and the related consolidated statements of income and changes in financial position for the 12 months ended that date, certified by Coopers & Xxxxxxx, copies of all of which have been delivered to the Banks, fairly present the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and the consolidated results of their operations and changes in financial position for such fiscal year, in conformity with GAAP consistently applied. (c) The unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of March 31, 1997 and the related unaudited consolidated statements of income and cash flows changes in financial position for the six months fiscal quarter then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30ended, 2014, copies a copy of which have has been furnished delivered to each of the Administrative AgentBanks, fairly present, in conformity which generally accepted accounting principles with GAAP applied on a basis consistent with the financial statements referred to in clause paragraph (ib) of this paragraph (e)Section, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows changes in financial position for such nine month period fiscal quarter (subject to normal year-end adjustments). (iiid) Since September 30Except as disclosed in writing to the Banks prior to July 23, 20131997, there has been no material adverse change since December 31, 1996 and prior to July 23, 1997, in the business, operations, affairs, assets, condition (financial or otherwise) or results of operations of the Borrower and its Consolidated Subsidiaries, taken considered as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (fe) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except Except as disclosed in filings made by writing to the Borrower with the Securities and Exchange Commission on Banks prior to July 23, 1997, there is no action, suit or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, andproceeding pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries in any court or before or by any arbitrator, governmental department, agency or instrumentality (i) which is likely to have a material adverse effect upon the Borrower's ability to pay and perform its obligations under the Bank Credit Documents in accordance with their respective terms or (ii) which in any manner draws into question the validity of any of the Bank Credit Documents. (f) No Default has occurred and is continuing. (g) No consent, authorization, order or approval of (or filing or registration with) any governmental commission, board or other regulatory authority (other than routine reporting requirements) is required for the execution, delivery and performance by the Borrower of any of the Bank Credit Documents or for borrowings thereunder by the Borrower. (h) Each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Multiemployer Plan, Plan and is in compliance in all material respects with, and has been administered in all material respects in compliance with, with the presently applicable provisions of ERISA, ERISA and the Code and with respect to each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Code in respect of any other Federal Plan, (ii) failed to make any contribution or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, payment to the PBGC established under ERISA in connection with any Plan or Multiemployer PlanPlan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Code or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA. (i) The Cross-Indemnification Agreement and the Tax Sharing Agreement, in the respective forms, with amendments, certified to the Banks pursuant to Section 3.01(iv), are in full force and effect in accordance with their respective terms except for (1) any amendments, modifications or waivers of the Tax Sharing Agreement which do not materially alter the rights and obligations of the Borrower thereunder which as a whole place the Borrower in the same (or more favorable) relative financial position with respect to the Parent which the Borrower would have been in if the Borrower were not consolidated with the Parent for purposes of filing federal, state or local or other income tax returns, (2) any amendments to the Cross- Indemnification Agreement for the purpose of placing the Borrower and the Parent in the same financial positions with respect to each other which they would have been in if the Borrower and the Parent were not members of the same ERISA Group, including the allocation of, and indemnification with respect to, assets and funded and unfunded liabilities among the Borrower, the Parent, Affiliates, Subsidiaries and their respective Plans in such manner as is fair and equitable to the Borrower and its Subsidiaries, (3) any amendments, modifications or waivers of the Cross-Indemnification Agreement or the Tax Sharing Agreement which do not, in the aggregate, materially reduce the rights of the Borrower thereunder against the Parent or materially increase the obligations of the Borrower thereunder to the Parent and (4) any other amendments, modifications or waivers of such instruments to which the Required Banks have consented. True and complete copies of all such amendments, modifications and waivers have been delivered to the Agent for each of the Banks. No amount that may be due under the Cross-Indemnification Agreement or the Tax Sharing Agreement from the Parent to the Borrower or to the Parent from the Borrower is delinquent, except such amount as the Borrower or the Parent may be contesting in good faith. (j) Each corporate Subsidiary is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, and has all corporate powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted except for licenses, authorizations, consents or approvals the absence of which will not materially and adversely affect the business of the Borrower and its Consolidated Subsidiaries taken as a whole. (k) The Borrower is not an "investment company”, or a company “controlled” by an “investment company”, " within the meaning of the Investment Company Act of 1940, as amended. (kl) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or There are no Liens on any Lender by or on behalf asset of the Borrower in connection with or any Subsidiary on July 23, 1997 which would have been prohibited if Section 5.02 of this Agreement or contained had been in any filing made by effect on the date the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries aresuch Subsidiary, as of the Closing Datecase may be, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solventacquired such asset. (m) Each Except as disclosed in writing to the Banks, the description of environmental matters affecting the Borrower and its Subsidiaries is contained in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect each of the conduct Borrower's reports delivered to the Banks pursuant to clause (ii) of its business and Section 5.01(c) complied in all material respects as of the ownership date of its property (including compliance such report with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Securities Exchange Act of 19771934, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, and the rules and regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)promulgated thereunder. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Arco Chemical Co), Credit Agreement (Arco Chemical Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing and in good standing under the laws of the State of New Jersey and Delaware, (ii) is duly qualified and in good standing under the laws of New Jersey and as a foreign corporation in each of the respective states other jurisdiction in which it owns or leases property or in which the conduct of its principal operating facilities are located, except, with respect business requires it to this clause (ii) only, in states so qualify or be licensed except where the failure to so qualify or be so qualified or in good standing licensed would not reasonably be expected have a Material Adverse Effect and (iii) has all the requisite corporate power and authority to result in own or lease and operate its properties and to carry on its business as now conducted except where the failure to do so would not have a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement the Basic Documents, and the Notes consummation of the transactions contemplated hereby (i) including, without limitation, the Acquisition), are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene the Borrower's certificate of incorporation or by-laws, (ii) do violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting the Borrower or any of its Subsidiaries or any of their properties, except if such conflict, breach or default would not contravene (x) the Borrower’s charter or by-laws have a Material Adverse Effect, or (yiv) law result in or require the creation or imposition of any material contractual restriction binding on Lien upon or with respect to any of the properties of the Borrower oror its Subsidiaries. The Borrower is not in violation of any such law, to the knowledge rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of the Borrowerany contract, any loan agreement, indenture, mortgage, deed of trust, lease or other contractual restriction binding on the Borrowerinstrument, except for such violation or breach which would not have a Material Adverse Effect. (c) No Except as have been obtained (or, with respect to the Acquisition and the Acquisition Documents at any time prior to the making of the initial Loan, as have been or will be sought within the applicable time periods), no Credit Agreement ---------------- authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and performance by the Borrower of this Agreement the Basic Documents, or for consummation of the Notestransactions contemplated hereby, except and to the extent that either (x) any failure to obtain such authorization, approval or other action would not have a Material Adverse Effect or (y) with respect only to the Acquisition and the Acquisition Documents, the waiver by the Borrower of receipt of such authorization, approval or other action would constitute a Permitted Modification, or (ii) the consummation of the Acquisition. (d) This Agreement Each of the Loan Documents is, and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the hereunder will be, legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The Borrower has heretofore furnished to each of the Lenders consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30December 29, 2013, 1995 and the related consolidated statements of income income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then endedended on said date, copies with the opinion thereon (in the case of which have been furnished to the Administrative Agent, said consolidated balance sheet and statements) of Xxxxxx Xxxxxxxx LLP. All such financial statements are complete and correct and fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such said date and the consolidated results of the their operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such said date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30GAAP. Since December 29, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20131995, there has been no material adverse change in the businessMaterial Adverse Change. (f) No information, condition (financial exhibit or otherwise) report furnished by or results of operations on behalf of the Borrower and its Subsidiaries, to the Administrative Agent or any Lender in connection with the Acquisition or the execution of the Loan Documents contained any untrue statement (in light of the time such statements were made) of a material fact or omitted to state a material fact necessary to make the statements made therein taken as a whole, as shown on in the consolidated balance sheet as light of such date the circumstances under and the related consolidated statement time at which they were made, not misleading, provided that the -------- representations and warranties set forth in this Section 5.01(f) are, to the extent relating to information relating to the Target or any of net income for its Subsidiaries, to the fiscal year then ended.best of the Borrower's knowledge. Credit Agreement ---------------- (fg) There is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in arbitrator which there is likely to be an adverse decision that (i) would is reasonably likely to have a Material Adverse Effect, (ii) is reasonably likely to materially adversely affect the consummation of the Acquisition or (iii) purports to affect this Agreement or the transactions contemplated hereby. (h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has resulted or could reasonably be expected to result in a liability to the Borrower or its ERISA Affiliates in excess of $5,000,000. (i) Neither the Borrower nor any of its ERISA Affiliates has been notified by the sponsor of a Multiemployer Plan that it has incurred any Withdrawal Liability, and neither the Borrower nor any of its ERISA Affiliates, to the best of the Borrower's knowledge and belief, is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan, in each case other than any Withdrawal Liability that would not have a Material Adverse Effect. (j) Neither the Borrower nor any of its ERISA Affiliates has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, except where such reorganization or termination would not have a Material Adverse Effect. (k) The Borrower and each of its Subsidiaries have filed, have caused to be filed or have been included in all tax returns (federal, state, local and foreign) required to be filed and have paid (or have accrued any taxes shown that are not due with the filing of such returns) all taxes shown thereon to be due, together with applicable interest and penalties, except in any case where the failure to file any such return or pay any such tax is not in any respect material adverse effect on to the business, condition (financial Borrower or otherwise) or results of operations of the Borrower and its Subsidiaries, Subsidiaries taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (gl) No The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, no proceeds of any Loan will be used directly or indirectly for any purpose that violates the purpose provisions of purchasing or carrying margin stock (within the meaning regulations of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The System and after applying the proceeds of each Loan, the Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in Credit Agreement ---------------- compliance in all material respects with, and has been administered in all material respects in compliance withwith its obligations under Section 6.02(g). If requested by any Lender or the Administrative Agent, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished will furnish to the Administrative Agent or any and each Lender by or on behalf of the Borrower a statement in connection conformity with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect Federal Reserve Form U-1 referred to any such real estate asset or in Regulation U, the operations of the Borrower or any of its Subsidiaries)statements made in which shall be such, except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None opinion of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977each Lender, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) to permit the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance transactions contemplated hereby in accordance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.Regulation U.

Appears in 2 contracts

Sources: Credit Agreement (Renaissance Hotel Group N V), Credit Agreement (Marriott International Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower Each Loan Party and their Material Subsidiaries (i) is a corporation duly organized and organized, validly existing and in good standing under the laws of the State jurisdiction of New Jersey and its incorporation, (ii) is duly qualified and in good standing under the laws of New Jersey and as a foreign corporation in each of the respective states other jurisdiction in which it own or leases property or in which the conduct of its principal operating facilities are locatedbusiness requires it to so qualify or be licensed, except, with respect to this clause (ii) only, in states except where the failure to be so qualified or in good standing would not reasonably be expected to result in have a Material Adverse EffectEffect and (iii) has all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted as and proposed to be conducted. (b) The execution, delivery and performance by the Borrower of this Agreement Amendment and the Notes (i) Loan Documents, as amended hereby, to which it is or is to be a party are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not and do not contravene (xi) the Borrowersuch Loan Party’s charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borroweror affecting any Loan Party, any other contractual restriction binding on the Borrowerof its Subsidiaries or any of its properties. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and or performance by the Borrower of this Agreement Amendment or any of the NotesLoan Documents, as amended hereby, to which it is or is to be a party. (d) This Agreement and the Notes (when delivered hereunder) have Amendment has been duly executed and delivered by the Borrower. This Amendment and constitute each of the other Loan Documents, as amended hereby, to which the Borrower is a party are legal, valid and binding obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws relating affecting the rights of creditors generally and subject to or limiting creditors’ rights generally or by equitable general principles relating to enforceabilityof equity. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 25, 20132004, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at June 25, 2005, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the six months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject, in the consolidated case of said balance sheet as at June 25, 2005, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 25, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132004, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement Amendment or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if anyLoan Documents, as are being contested in good faith amended hereby, and as to which adequate reserves have there has been provided and except for filings or payments the failure of which to make would not (individually or no adverse change in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”status, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or financial effect on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, Disclosed Litigation from that described on Schedule 3.01(b) to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)Credit Agreement. (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower and each of its Material Subsidiaries (i) is a corporation duly organized and organized, validly existing and in good standing under the laws of the State its jurisdiction of New Jersey and organization, (ii) is duly qualified and in good standing under the laws of New Jersey and in each of the respective states other jurisdiction in which it owns or leases property or in which the conduct of its principal operating facilities are located, except, with respect business requires it to this clause (ii) onlyso qualify or be licensed and where, in states where the each case, failure so to qualify and be so qualified or in good standing would not reasonably be expected to result in could have a Material Adverse EffectEffect and (iii) has all requisite power and authority to own or lease and operate its Property and to carry on its business as now conducted and as proposed to be conducted. (b) The execution, delivery making and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not violate (i) any provision of the Borrower’s certificate of incorporation or by-laws, (ii) do not contravene (x) the Borrower’s charter any agreement, indenture or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower, (iii) any law, rule or regulation (including, without limitation, the Securities Act of 1933 and the Exchange Act and the regulations thereunder, and Regulations T, U or X), or (iv) any order, writ, judgment, injunction, decree, determination or award binding on the Borrower. The Borrower is not in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any contractual restriction binding upon it, except for such violation or breach which would not have a Material Adverse Effect. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority is required (other than those which have been obtained) for the due execution, delivery making and performance by the Borrower of this Agreement or for the Noteslegality, validity, binding effect or enforceability thereof. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the constitutes a legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ affecting the rights of creditors generally and except as the enforceability of this Agreement is subject to the application of general principles of equity (regardless of whether considered in a proceeding in equity or by at law), including, without limitation, (i) the possible unavailability of specific performance, injunctive relief or any other equitable principles relating to enforceabilityremedy and (ii) concepts of materiality, reasonableness, good faith and fair dealing. (i) The consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30January 1, 20132006, and the related consolidated statements of income and operations, cash flows of the Borrower and its Consolidated Subsidiaries changes in stockholders’ equity for the fiscal year then endedended on such date, audited by Pricewaterhouse Coopers L.L.P., copies of which have heretofore been furnished to the Administrative Agenteach Lender, are complete and correct in all material respects and present fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at of such date date, and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such datetheir operations, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth changes in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income stockholders’ equity for the fiscal year then ended. (ii) All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP for the periods involved. (iii) As of the date hereof, neither the Borrower nor any of its Consolidated Subsidiaries has any material Contingent Obligation or liability for taxes, long-term lease or unusual forward or long-term commitment which is not reflected herein or in the schedules and exhibits hereto or in the foregoing financial statements or in the notes thereto. (f) There Since January 1, 2006, no Material Adverse Change has occurred. (g) Except as disclosed in Schedule III, no litigation, investigation or proceeding of or before any court or Governmental Authority is no pending (or, to the knowledge of the Borrower’s knowledge, threatened) action threatened by or proceeding against the Borrower or any of its Material Subsidiaries before or against any court, governmental agency of its or arbitrator, in which there is likely to be an adverse decision that their respective Property or revenues (i) would have a material adverse effect on with respect to this Agreement or the business, condition (financial Notes or otherwise) or results of operations any of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, transactions contemplated hereby or (ii) purports to affect which, in the legalityreasonable judgment of the Borrower, validity, binding effect or enforceability of this Agreement or any Notewould have a Material Adverse Effect. (gh) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock Margin Stock, and no proceeds of any Advance will be used for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, or for any purpose that violates or would be inconsistent with the provisions of Regulations T, U and X. (within i) The Borrower is not an “investment company”, or a Person “controlled by” an “investment company”, as such terms are defined in the meaning Investment Company Act of Regulation U issued by the Board of Governors of the Federal Reserve System)1940, as amended. (hj) All information that has been made available by the Borrower or any of its representatives to the Administrative Agent or any Lender in connection with the negotiation of this Agreement was, on or as of the dates on which such information was made available, complete and correct in all material respects and did not contain any untrue statement of a material fact or omit to state a fact necessary to make the statements contained therein not misleading in light of the time and circumstances under which such statements were made. (k) A copy of the most recent Annual Report (5500 Series Form), including all attachments thereto, filed with the Internal Revenue Service for each Plan, has been provided to the Administrative Agent and fairly presents the funding status of each Plan as of the date of each such Annual Report. There has been no deterioration in any single Plan’s funding status, or, collectively, all of the Plan’s funding status since the date of such Annual Report that could reasonably be expected to have a Material Adverse Effect. The Borrower has provided the Administrative Agent with a list of all Plans and Multiemployer Plans and all available information with respect to direct, indirect, or potential withdrawal liability to any Multiemployer Plan of the Borrower or any member of a Controlled Group. (l) The Borrower and each of its Material Subsidiaries have filed is in compliance with all laws, statutes, rules, regulations and orders binding on or applicable to the Borrower or such Material Subsidiary (or have obtained extensions including, without limitation, ERISA and all Environmental Laws) and all of their respective Property, subject to the possible implications of the time by which they are required to file) all United States Federal income tax returns litigation and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested proceedings described in good faith and as to which adequate reserves have been provided Schedule III and except for filings or payments to the extent failure of which to make would so comply could not (either individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with has filed or caused to be filed all applicable statutes, regulations tax returns which to the knowledge of the Borrower are required to be filed and orders of, has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its Property and all applicable restrictions other taxes, fees or other charges imposed by, all Governmental Authorities, in respect of the conduct on it or any of its business Property by any Governmental Authority (other than those the amount or validity of which is currently being contested in good faith by appropriate proceedings and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and which reserves in conformity with GAAP have been provided on the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations books of the Borrower or any of its Subsidiaries), except such non-compliance thatas the case may be, individually or those the failure to pay which, in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect. ); and (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, no tax liens have been filed and (ii) to the knowledge of the Borrower, employeesno claims are being asserted with respect to any such taxes, agentsfees or other charges, advisors which, either individually or Affiliates is in the subject aggregate, are in excess of any sanctions or economic embargoes administered or enforced by the United States$1,000,000, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)than as disclosed in Schedule III. (iin) None Schedule IV contains an accurate list of all of the presently existing Subsidiaries and Material Subsidiaries, setting forth their respective jurisdictions of incorporation and the percentage of their respective outstanding capital stock or other equity interests owned by the Borrower or other Subsidiaries and all of the issued and outstanding shares of capital stock or other equity interests of the Subsidiaries have been duly authorized and issued and are fully paid and non-assessable. (o) The agreements identified on Schedule V (the “Material Agreements”) are all of the material business contracts (other than purchase and sales agreements and credit agreements) to which the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged Material Subsidiary is a party; each Material Agreement is in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of full force and effect; and the Borrower and its Material Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve are in material compliance with all Sanctions Laws, Anti-Corruption Laws, the terms and Anti-Money Laundering Lawsprovisions applicable to them contained in the Material Agreements. (ivp) No part The Borrower is, and immediately after the making of the proceeds of the Loans each Borrowing will be usedbe, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering LawsSolvent.

Appears in 2 contracts

Sources: Credit Agreement (Coca Cola Bottling Co Consolidated /De/), Credit Agreement (Coca Cola Bottling Co Consolidated /De/)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery delivery, and performance by the Borrower of this Agreement and the Notes New Note and the consummation of the transactions contemplated thereby (i) are within do not contravene the organizational documents of the Borrower’s corporate powers, (ii) have been duly authorized by all necessary corporate actionaction of the Borrower, and (iii) are within the Borrower's corporate powers. (b) This Agreement has been duly executed and delivered by the Borrower and constitutes the legal, valid, and binding obligation of the Borrower, enforceable against the Borrower in accordance with the Agreement's terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws at the time in effect affecting the rights of creditors generally and general principles of equity. (c) The execution, delivery, and performance, in accordance with their respective terms, by the Borrower of this Agreement and the New Note and the consummation of the transactions contemplated thereby, (i) do not result in any violation or breach of any provisions of, or constitute a default under, any note, indenture, credit agreement, security agreement, credit support agreement, or other similar agreement to which the Borrower is a party or any other Material contract or agreement to which the Borrower is a party, (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) violate any law or any material contractual restriction regulation binding on the Borrower or, to the knowledge of or affecting the Borrower, (iii) do not require any other contractual restriction binding on the Borrower. (c) No authorization or approval authorization, approval, or other action by, and no or any notice to or filing with, any governmental authority authority, and (iv) do not result in or regulatory body is required for require the due execution, delivery and performance creation or imposition of any Lien prohibited by the Borrower of this Agreement or the NotesAgreement. (d) This After giving effect to this Agreement and any other New Lender Agreements and Accordion Agreements, the Notes (when delivered hereunder) have been duly executed and delivered and constitute Borrower will be in compliance with the legal, valid and binding obligations limitations set forth in Section 2.08 of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityCredit Agreement. (ie) The consolidated balance sheets If there is an increase to the Revolving Commitments and on the effective date of such increase any Revolving Loans are outstanding, arrangements satisfactory to the Agent have been made to prepay all outstanding Revolving Loans, together with accrued interest thereon and any amounts payable pursuant to Section 3.04 of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedCredit Agreement. (f) There is no pending (or, to The resolutions duly adopted by the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations respective governing bodies of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports Subsidiary Guarantors are sufficient to affect the legality, validity, binding effect or enforceability of authorize this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance withAgreement, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”New Note, and the associated laws, rules, regulations Guaranty thereof and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977security therefor, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Lawsapplicable, and Anti-Money Laundering Lawssuch resolutions remain in full force and effect. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Accordion Agreement (Lyondell Chemical Co), Accordion Agreement (Lyondell Chemical Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of warrants to the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, Lender as follows: (a) 5.1. The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) Israel. The Borrower is duly qualified to conduct its business and in good standing under has the laws of New Jersey requisite corporate power and each of the respective states in which authority and any necessary governmental authority, franchise, license or permit to own, operate, lease and otherwise to hold and operate its principal operating facilities are located, except, with respect assets and properties and to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectcarry on its businesses. (b) 5.2. The execution, delivery Borrower has the full corporate power and performance by the Borrower of authority to execute and deliver this Agreement and to consummate the Notes (i) transactions contemplated hereunder. There are within no other consents, approvals, authorizations or permits required on its part for the Borrower’s corporate powersconsummation of the transactions contemplated hereunder. The Borrower has duly and validly executed and delivered this Agreement, have been duly authorized by all necessary corporate action, which constitutes a valid and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge obligation of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. 5.3. The execution and delivery of this Agreement by the Borrower does not, and the performance by the Borrower of its obligations under this Agreement, will not (i) The consolidated balance sheets conflict with or violate the organizational documents of the Borrower and its Consolidated Subsidiaries as at September 30Borrower, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of violate any law, statute, ordinance, rule, regulation, order, judgment or decree applicable to the Borrower and or by which any of its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). properties or assets is bound or affected; (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial violate any agreement or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against arrangement the Borrower or any of its Subsidiaries before subsidiaries are party to; or require the consent of any courtthird party or regulatory body. 5.4. The financial statements issued by the Borrower and publicly available are complete, governmental agency accurate, and fairly present the financial condition of Borrower as of the dates stated, and there have been no material adverse changes in Borrower’s financial condition since the date of the most recent financial statements. 5.5. There are no actions, suits, investigations, or arbitrator, in which there is likely to be an adverse decision proceedings pending or threatened against Borrower that (i) would could have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports ability to affect the legality, validity, binding effect or enforceability of perform its obligations under this Agreement or any NoteAgreement. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The 5.6. Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statuteslaws, regulations and orders ofregulations, and all applicable restrictions imposed byordinances, all Governmental Authoritiesand no event has occurred that could result in any material violation thereof. 5.7. Borrower is not in default under any debentures, in respect of the conduct of its business bonds, or other material obligations, and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance no event has occurred that, individually or in the aggregatewith notice and/or lapse of time, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Lawsdefault. 5.8. Except for the representations and warranties set forth in Section ‎5 herein, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or Borrower did not receive any other applicable anti-bribery representations or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) warranties from the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)Lender. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Loan Agreement (SciSparc Ltd.), Loan Agreement (SciSparc Ltd.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) : The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) Delaware. The execution, delivery and performance by the Borrower of this Agreement and the Notes or CAF Notes (i) if any), and the consummation of the transactions contemplated hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not (i) contravene (x) the Borrower’s charter 's certificate of incorporation or by-laws or (y) any law or any material contractual restriction binding on the Borrower or, to the knowledge of or affecting the Borrower, or (ii) constitute a default under any existing indenture, loan agreement or other contractual restriction binding on material agreement to which the Borrower. (c) Borrower or any Subsidiary of the Borrower is a party. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. Notes or CAF Notes (d) if any), and no law or regulation is applicable that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. This Agreement has been, and each of the Notes or CAF Notes (if any) when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes or CAF Notes (if any) when delivered hereunder will be, the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) . The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30of December 31, 20132003, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to the Administrative Agenteach Lender, fairly present present, in all material respects, the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132003, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) Material Adverse Change. There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Note. (g) No proceeds other Loan Document or the consummation of any Loan will be used directly or indirectly the transactions contemplated hereby. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within Margin Stock, and no proceeds of any Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the meaning purpose of Regulation U issued purchasing or carrying any Margin Stock. Neither the Borrower nor any Subsidiary of the Borrower is an "investment company" as defined in, or otherwise subject to regulation under, the Investment Company Act of 1940, as amended. None of the execution and delivery of the Loan Documents by the Board Borrower or the performance of Governors its obligations thereunder violate any regulation under the Public Utility Holding Company Act of the Federal Reserve System). (h) 1935, as amended. The Borrower is and each of its Subsidiaries have filed are in substantial compliance with all applicable laws, ordinances, rules, regulations, and requirements of governmental authorities (or have obtained extensions of including, without limitation, Environmental Laws and ERISA and the time by which they are required to filerules and regulations thereunder) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would any non-compliance that could not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Centerpoint Energy Resources Corp), Credit Agreement (Centerpoint Energy Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each law of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectState of Delaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) and will not contravene, or cause or constitute a violation of, any provision of law or regulation or any provision of the Borrower’s charter or by-laws or (y) law result in the breach of, or constitute a default or require any material contractual restriction binding on consent under, or result in the creation of any lien, charge or encumbrance upon any of the properties, revenues, or assets of the Borrower or, to the knowledge of the Borrowerpursuant to, any indenture or other contractual restriction binding on material agreement or instrument to which the BorrowerBorrower is a party or by which the Borrower or its property may be bound or affected. (c) No authorization or authorization, consent, approval (including any exchange control approval), license or other action by, and no notice to or filing or registration with, any governmental authority Governmental Authority, administrative agency or regulatory body or any other third party (including any creditor) is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective termsterms (subject, except as may be limited by to the enforcement of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium or and similar laws relating to or limiting creditors’ affecting creditors rights generally or by equitable principles relating to enforceabilitygenerally). (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132004, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished ended (together with the notes to the Administrative Agentfinancial statements of the Borrower and its Consolidated Subsidiaries), accompanied by an opinion of Ernst & Young LLP, independent public accountants, fairly present in all material respects in accordance with GAAP the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such date. The unaudited interim Consolidated financial statements of the Borrower for each of the quarterly periods ended March 31, 2005 and June 30, 2005, fairly present in all material respects in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets GAAP the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 at the dates thereof and the related unaudited consolidated statements results of income and cash flows their operations for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period periods covered thereby (subject to normal year-end audit adjustments). (iii) . Since September 30December 31, 20132004, there has been no material adverse change in the businessMaterial Adverse Change, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken except as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedotherwise publicly disclosed. (f) There is no pending (or, to the knowledge of the Borrower’s knowledge, threatened) action threatened action, suit, investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby, and there has been no material adverse change in the status, or financial effect on the Borrower or on the Borrower and its Subsidiaries taken as a whole, of the Disclosed Litigation from that described in the Exchange Act Disclosure. (g) No proceeds Neither the Borrower nor its Subsidiaries are engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Following application of the proceeds of each Advance, not more than 25 percent of the value of the assets (either of the Borrower or of the Borrower and its relevant Subsidiaries on a Consolidated basis) subject to any of the covenants contained in Article V will be margin stock (within the meaning of Regulation U). (h) The Borrower is not, and its Subsidiaries have filed (or have obtained extensions immediately after the application of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxesproceeds of each Borrowing, assessments and governmental charges which have become duewill not be, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended, or (ii) a “holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended. (ki) No statement, information, report, representation, or warranty made by the Borrower in Neither this Agreement or furnished to the Administrative Agent or nor any Lender other document delivered by or on behalf of the Borrower or any of its Affiliates in connection with this Agreement or included therein contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) or contains any untrue statement material misstatement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (lj) The Borrower and each of its Subsidiaries are, as of the Closing Date, after giving effect and ERISA Affiliates have met their minimum funding requirements under ERISA with respect to their Plans in all material respects and have not incurred liability to the Acquisition PBGC in an amount in excess of $100,000,000, individually or in aggregate, other than for the payment of premiums, in connection with such Plans. (k) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan and no condition or event currently exists or currently is expected to occur that could result in any ERISA Event. (l) The Schedules B (Actuarial Information) to the making most recent annual reports (Form 5500 Series) with respect to each Plan, copies of which have been filed with the Loans Internal Revenue Service (and application which will be furnished to any Lender through the Agent upon the request of such Lender through the proceeds thereofAgent to the Borrower), on a consolidated basis, Solventare complete and accurate in all material respects and fairly present in all material respects the funding status of such Plans at such date. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws No amendment with respect to which security is required under Section 401(a)(29) of the Code or Section 307 of ERISA has been made or is reasonably expected to be made to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws Plan. The aggregate Underfunding with respect to all Plans which have any Underfunding does not exceed $100,000,000. (n) Neither the Borrower nor any of its Subsidiaries or ERISA Affiliates has incurred or reasonably expects to incur any Withdrawal Liability to any Multiemployer Plan in an amount in excess of $100,000,000, individually or in aggregate. (o) Neither the Borrower nor any of its Subsidiaries or ERISA Affiliates has been notified by the sponsor of a Multiemployer Plan that such real estate asset Multiemployer Plan is in reorganization or has been terminated, within the operations meaning of Title IV of ERISA. No Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in a reorganization or termination which might reasonably be expected to result in a liability of the Borrower or any of its Subsidiaries), except such non-compliance thatSubsidiaries or ERISA Affiliates in an amount in excess of $100,000,000, individually or in aggregate. (p) No default under any agreement or instrument evidencing any Indebtedness of the aggregateBorrower or any of its Subsidiaries has occurred and is continuing, would and no such event will occur upon the occurrence of the Effective Date, other than any such default which could not be reasonably be expected to result in have a Material Materially Adverse Effect. (iq) None The operations and properties of the Borrower and its Subsidiaries taken as a whole comply in all material respects with all applicable Environmental Laws, all necessary Environmental Permits have been applied for or have been obtained and are in effect for the operations and properties of the Borrower and its Subsidiaries, and the Borrower and its Subsidiaries are in compliance in all material respects with all such Environmental Permits other than, in any such case, where any such failure could not be reasonably expected to have a Material Adverse Effect. Except as described in the Exchange Act Disclosure, no circumstances exist that would be reasonably likely to form the basis of an Environmental Action against the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)properties that could have a Material Adverse Effect. (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Williams Companies Inc), Credit Agreement (Williams Companies Inc)

Representations and Warranties of the Borrower. The Borrower hereby represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized has the power and validly existing authority and legal right to execute and deliver this Amendment and to perform its obligations hereunder and under the laws of the State of New Jersey Credit Agreement (as modified hereby). The execution and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement Amendment and the Notes performance of its obligations hereunder and under the Credit Agreement (ias modified hereby) are within the Borrower’s corporate powers, have been duly authorized by all necessary proper corporate actionproceedings, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement Amendment and the Notes Credit Agreement (when delivered hereunderas modified hereby) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws relating to or limiting affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceabilitygenerally. (b) Neither the execution and delivery by the Borrower of this Amendment, nor the consummation of the transactions contemplated herein or in the Credit Agreement (as modified hereby), nor compliance with the provisions hereof or thereof will violate (i) The consolidated balance sheets any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower, (ii) the Borrower’s articles or incorporation or by-laws or (iii) the provisions of any indenture, instrument or agreement to which the Borrower 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 and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished pursuant to the Administrative Agentterms of any such indenture, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently appliedinstrument or agreement. (iic) The unaudited consolidated balance sheets 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 the Borrower and its Consolidated Subsidiaries as of June 30any governmental or public body or authority, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in or any subdivision thereof, which has not been obtained by the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely required to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made obtained by the Borrower in connection with the Securities execution and Exchange Commission on delivery of this Amendment or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this the Credit Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve Systemas modified hereby). (hd) The Borrower and its Subsidiaries have filed (or have obtained extensions As of the time by which they are required to file) all United States Federal income tax returns date hereof and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making terms of the Loans and application of the proceeds thereofthis Amendment, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower there exists no Default or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, Unmatured Default and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None the representations and warranties contained in Article V of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of Credit Agreement (xas modified hereby) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower are true and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory correct except to the extent that any such country representation or territory warranty is the subject of any Sanctions, or in any other manner that reasonably would be expected stated to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments relate solely to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacityearlier date, in order to obtain, retain which case such representation or direct business or obtain any improper advantage, in violation warranty shall have been true and correct on and as of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawssuch earlier date.

Appears in 2 contracts

Sources: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)

Representations and Warranties of the Borrower. The Borrower hereby represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as followswarrants that : (a) The Borrower (i) 19.1.1 it is a corporation duly organized and validly existing under the laws of Argentina as a " ; 19.1.2 it has full power and authority to carry on its business as it is now being conducted and especially to incur indebtedness as provided in this Agreement, any Admission Form and any Promissory Note, execute the State Agreement, any Admission Form, any Promissory Note and any Letter of New Jersey Instructions and (ii) is duly qualified to perform all their terms and conditions ; 19.1.3 in good standing under accordance with the laws of New Jersey Argentina and each the Borrower's articles of incorporation and by-laws, the respective states in which its principal operating facilities are locateddecision to incur indebtedness and to enter into this Agreement has been validly taken on June 27th, except1997 by Acta de Directorio, and M. Xxxxxxx XXXXXXXXXX has been validly authorised to sign the Agreement, any Admission Form, any Letter of Instructions and any Promissory Note and to perform all their terms and conditions ; 19.1.4 it is not necessary to take any legal action and to obtain from the competent authorities of Argentina, any approval necessary with respect to this clause (ii) onlythe laws of Argentina for the validity of the Agreement, any Admission Form, any Letter of Instructions and any Promissory Note and authorising their execution and performance especially with respect to foreign exchange regulations, the right to acquire and transfer the amounts in states where Currencies necessary for the failure Borrower to be so qualified pay any and all amounts owed under the Agreement, any Admission Form and any Promissory Note whether on their due dates or in good standing would not reasonably be expected to result in a Material Adverse Effect.the event of acceleration ; (b) The execution, delivery and performance by 19.1.5 the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the BorrowerAgreement, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing withAdmission Form, any governmental authority or regulatory body is required for the due execution, delivery Letter of Instructions and performance by the Borrower of this Agreement or the Notes. (d) This Agreement any Promissory Note when signed shall be in proper legal form and the Notes (when delivered hereunder) have been duly executed constitute and delivered and shall constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective termsterms until full payment of all sums due ; 19.1.6 the decision to incur indebtedness, except as may be limited the execution of the Agreement, any Promissory Note and any Letter of Instructions and the performance by bankruptcythe Borrower of the obligations resulting therefrom do not and shall not result in any breach or violation of, insolvencyor constitute a default under, reorganizationthe Borrower's articles of incorporation and by-laws or any agreement binding on it or to which it is a party, moratorium or similar public order provision, laws relating or regulations applicable to or limiting creditors’ the Borrower ; 19.1.7 it has good and valid title to its property ; 19.1.8 the rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Banks arising from this Agreement, any Admission Form and any Promissory Note rank and will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Borrower ; 19.1.9 it is not in breach of any of its obligations and is not in default under any agreement to which it is a party ; 19.1.10 there are no litigations or judicial, arbitration or administrative proceedings pending or to its Consolidated Subsidiaries as at September 30knowledge threatened, 2013which might forbid the signature of the Agreement or of any Admission Form, threaten the good performance of its obligations under this Agreement, any Admission Form, any Letter of Instructions, and/or any Promissory Note or adversely affect its activities, its property or its financial condition ; 19.1.11 no tax, duty, withholding nor other fiscal payment are levied in Argentina with respect to the Agreement, any Admission Form, any Letter of Instructions and/or any Promissory Note ; 19.1.12 it is not necessary in order to ensure (a) the legality, validity, enforceability or (b) the admissibility in evidence in a court in Argentina and to obtain the performance of this Agreement, any Admission Form, Promissory Note and/or Letter of Instructions or payment hereunder and/or thereunder, that any of them be stamped or registered or any duty paid or any authorisation obtained in Argentina ; 19.1.13 the Agreement needs not to be registered with any authority in Argentina ; 19.1.14 any information supplied by the Borrower to the Arranger and/or to any Bank in connection with this Agreement is accurate and complete and the related statements Borrower is not aware of income and cash flows any other information not disclosed to the Banks, the disclosure of which might have changed the decision of the Borrower and its Consolidated Subsidiaries for Banks to enter into this Agreement ; 19.1.15 the fiscal year then ended, copies of which have been furnished financial statements delivered to the Administrative AgentArranger are complete and correct, fairly comply with the Argentinian legal requirements and present a true and fair view of the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all operation in accordance with generally accepted accounting principles consistently applied.in Argentina ; (ii) The unaudited consolidated balance sheets 19.1.16 it has no right of immunity either from jurisdiction or from execution ; 19.1.17 this Agreement, any Admission Form, any Letter of Instructions, and any Promissory Note constitute or shall, if and when signed, constitute commercial acts ; 19.1.18 it has validly chosen French law to govern its obligations under this Agreement, any Admission Form, any Letter of Instructions and any Promissory Note ; 19.1.19 it has validly submitted hereunder to the non-exclusive jurisdiction of an arbitration court organized under the Rules of Conciliation and Arbitration of the Borrower and its Consolidated Subsidiaries as International Chamber of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position Commerce ; All of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings representations made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will above shall be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by deemed repeated until all sums which they are required to file) all United States Federal income tax returns and all other material tax returns required to may be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made owed by the Borrower in pursuant to this Agreement Agreement, any Admission Form and/or any Promissory Note have been paid or furnished repaid to the Administrative Agent or any Lender by or on behalf of the Borrower Banks in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingfull. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Master Credit Agreement (Leitesol Industry & Commerce Inc.), Master Credit Agreement (Mastellone Brothers Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) Each Loan Party is a corporation duly validly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the state of its organization, is duly qualified to do business and in good standing as a foreign corporation in each jurisdiction where the nature of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states business makes such qualification necessary and where the failure to be so qualified or in good standing qualify would not reasonably be expected to result have a Materially Adverse Effect and has full power and authority to own and hold under lease its property and conduct its business substantially as presently conducted by it. Each Loan Party has full power and authority to enter into and to perform its obligations under this Amendment and the Credit Agreement and each other Loan Document to which each is a party, as amended hereby, and to obtain the Advances under the Credit Agreement, as amended hereby, in a Material Adverse Effectthe case of the Borrower. (b) The executionexecution and delivery by each Loan Party of this Amendment and the Credit Agreement and each Loan Document executed by it, delivery as amended hereby, and the performance by each of its respective obligations thereunder and the borrowings under the Credit Agreement, as amended hereby, by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate corporate, partnership and limited liability company action, and (ii) as the case may be, do not contravene require any Approval, do not and will not conflict with, result in any violation of, or constitute any default under, any provision of any Organic Document or material Contractual Obligation of such Loan Party (xor any other material Contractual Obligation) the Borrower’s charter or by-laws or (y) any present law or governmental regulation or court decree or order applicable to any material contractual restriction binding on Loan Party and will not result in or require the Borrower or, creation or imposition of any Lien in any of their respective properties pursuant to the knowledge provisions of the Borrower, any other contractual restriction binding on the BorrowerContractual Obligation. (c) No authorization or approval or other action byThis Amendment and the Credit Agreement, as amended hereby, is, and no notice to or filing with, each Loan Document executed by any governmental authority or regulatory body is required for Loan Party will on the due executionexecution and delivery thereof be, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations obligation of the Borrower such Loan Party enforceable against the Borrower in accordance with their respective its terms, except subject, as may be limited by to enforcement, only to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ at the time in effect affecting the enforceability of the rights generally or of creditors generally, and by general equitable principles relating to enforceabilityprinciples. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (fd) There is no pending (oraction, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance withAmendment, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower Collateral Agreements or any of its Subsidiaries)the other Loan Documents, except such non-compliance thatas amended hereby, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies consummation of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)transactions contemplated hereby. (iie) None The Collateral Agreements consisting of security agreements or mortgages to which the Loan Parties are or are to be a party, when delivered hereunder, will create valid and perfected first priority liens and security interests in and to the Collateral covered thereby, securing the payment of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged Secured Obligations (in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977each case, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”defined in such Collateral Agreement). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Loan Agreement (Consol Energy Inc), Loan Agreement (Consol Energy Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of warrants to the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, Lender as follows: (a) The the Borrower (i) is exists as a corporation duly organized under the laws of the Province of Alberta, and validly existing has not discontinued or been dissolved under any applicable laws and is in good standing with respect to the filing of annual reports and all other such requirements pursuant to the laws thereof; (b) the Guarantor exists as a corporation under the laws of the State of New Jersey Colorado, and has not discontinued or been dissolved under any applicable laws and is in good standing with respect to the filing of annual reports and all other such requirements pursuant to the laws thereof; (c) the Borrower and each Subsidiary has the power and authority to (i) carry on its businesses as now being conducted and is licensed or registered or otherwise qualified in all jurisdictions where in the nature of its assets or the business transacted makes such licensing, registration or qualification necessary, (ii) is duly qualified acquire, own, hold, lease and mortgage or grant security in good standing its assets including real property and personal property and (iii) enter into and perform its obligations under the laws of New Jersey this Agreement and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified all other documents or in good standing would not reasonably be expected to result in a Material Adverse Effect.instruments delivered hereunder; (bd) The executionthis Agreement and all ancillary instruments or documents issued, delivery executed and performance delivered hereunder by the Borrower of this Agreement and or the Notes (i) are within the Borrower’s corporate powersGuarantor, as applicable, have been duly authorized by all necessary corporate actionaction of the Borrower and the Guarantor, as applicable, and (ii) do not contravene (x) the Borrower’s charter each constitutes or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and will constitute the a legal, valid and binding obligations obligation of the Borrower or the Guarantor, as applicable, enforceable against the Borrower or the Guarantor, as applicable, in accordance with their respective terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or and other similar laws relating affecting the rights and remedies of creditors and to the general principles of equity; (e) neither the Borrower nor any Subsidiary is in breach of or limiting creditors’ rights generally in default under any obligation in respect of borrowed money, and the execution and delivery of this Agreement and all ancillary instruments or documents issued and delivered hereunder or thereunder, and the performance of the terms hereof and thereof will not be, or result in, a violation or breach of, or default under, the Borrower’s or any Subsidiary’s constating documents, any law, judgment, agreement or instrument to which they are a party or may be bound; (f) neither the entering into of this Agreement nor any of the Security by equitable principles relating the parties thereto will constitute a breach or default under or in respect of any agreement to enforceability.which either the Borrower or the Guarantor is bound, and no consent, filing, authorization or approval is prudent or necessary under the terms of any such agreement to proceed with the transactions contemplated herein, including but not limited to the granting of the Security by the parties thereto; (g) the Security creates a valid first registered charge, lien and security interest on the property and assets of the Borrower and the Guarantor, as applicable, which has been granted over the applicable properties and assets in accordance with the terms hereof; (h) no litigation or administrative proceedings before any court or governmental authority are presently ongoing, or have been threatened in writing, or to the best of the Borrower’s knowledge are pending, against the Borrower, any Subsidiary or any of their respective properties or assets or affecting any of their respective properties or assets which could have a material adverse effect on their respective business, properties or assets; (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries each Subsidiary, as at September 30the case may be, 2013is the legal and beneficial owner of or has the right to acquire the interests in the properties, business and assets referred to in the information circulars, prospectuses, annual information forms, offering memoranda, financial statements, material change reports and news releases filed with the Exchange and the securities regulatory authority or commission in each of the jurisdictions in which the Borrower is a reporting issuer on or during the twelve (12) months preceding the date hereof, and any other disclosure materials provided to the related statements of income Lender and cash flows of its advisers in conjunction with this transaction (collectively, the “Disclosure Record”), and any and all agreements pursuant to which the Borrower and its Consolidated Subsidiaries for each Subsidiary, as the fiscal year then endedcase may be, copies of which have been furnished to holds or will hold any such interest in property, business or assets are in good standing in all material respects under the Administrative Agent, fairly present the consolidated financial condition applicable statutes and regulations of the Borrower and its Consolidated Subsidiaries as at such date and jurisdictions in which they are situated; (j) there has been no adverse material change (actual, contemplated or threatened) in the consolidated results of the property, assets, business or operations of the Borrower and its Consolidated Subsidiaries for or any Subsidiary within the fiscal year ended on such datepast twelve (12) months, all except as disclosed in accordance with generally accepted accounting principles consistently applied.the Disclosure Record; (iik) The unaudited consolidated balance sheets the Disclosure Record is complete and accurate in all material respects and omits no facts, the omission of which makes the Disclosure Record, or any particulars therein, misleading, misrepresentative or incorrect in any material respect; (l) the Borrower and its Consolidated Subsidiaries as to the best of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report knowledge each Subsidiary, has conducted and is conducting its businesses in material compliance with all applicable laws, bylaws, rules and regulations of each jurisdiction in which its businesses are now carried on Form 10-Q for and hold all licenses, registrations, permits, consents or qualifications (whether governmental, regulatory or otherwise) required in order to enable its businesses to be carried on as now conducted or as proposed to be conducted, and all such licenses, registrations, permits, consents and qualifications are valid and subsisting and in good standing and neither the quarter ended June 30, 2014, copies Borrower nor any Subsidiary has received any notice of which have been furnished proceedings relating to the Administrative Agentrevocation or modification of any such licenses, fairly presentregistrations, in conformity which generally accepted accounting principles applied on a basis consistent with permits, consents or qualifications which, if the financial statements referred to in clause (i) subject of this paragraph (e)an unfavourable decision, ruling or finding, would materially adversely affect the consolidated financial position of the Borrower and its Consolidated Subsidiaries as condition of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30businesses, 2013, there has been no material adverse change in the businessoperations, condition (financial or otherwise) or results of operations income of the Borrower and its Subsidiaries, taken as a wholeor any such Subsidiary, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended.case may be; (fm) There is no pending order ceasing or suspending trading in securities of the Borrower or prohibiting the sale or trading of securities by the Borrower has been issued and no proceedings for this purpose have been instituted, are pending, contemplated or threatened; (n) neither Canada Revenue Agency nor any other taxation authority has asserted or, to the best of the Borrower’s knowledge, threatened) action has threatened to assert any assessment, claim or proceeding against liability for taxes due or to become due in connection with any review or examination of the tax returns of the Borrower or any of its Subsidiaries before Subsidiary filed for any court, governmental agency or arbitrator, in year which there is likely to be an adverse decision that (i) would have a material adverse effect on the assets, properties, business, results of operations, prospects or condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken or any Subsidiary; (o) neither the Borrower nor any Subsidiary is a party to any material contract other than as a wholedisclosed in the Disclosure Record; (p) as at the date of this Agreement, except as disclosed in filings made by the Disclosure Record, no holder of outstanding shares in the capital of the Borrower with will be entitled to any pre-emptive or any similar rights to subscribe for any of the Securities shares in the capital of the Borrower or other securities of the Borrower or any Subsidiary, and Exchange Commission on no rights, warrants or before October 5, 2014options to acquire, or instruments convertible into or exchangeable for any shares in the capital of the Borrower or any Subsidiary are outstanding; (iiq) purports except for the Guarantor, Big Gas Sand Corporation, TransAtlantic Worldwide, Ltd., Transatlantic Worldwide Romania SRL, TransAtlantic Maroc, Ltd., TransAtlantic North Sea, Ltd. and TransAtlantic Turkey, Ltd., the Borrower has no direct or indirect subsidiary corporations; (r) except as disclosed to affect the legality, validity, binding effect or enforceability Lender in writing prior to the date of this Agreement Agreement, the Borrower and each Subsidiary owns its business, operations and assets, as more particularly described in the Disclosure Record, and holds good title thereto, free and clear of all liens, claims or any Note.encumbrances whatsoever; (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to files) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings factual information previously or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or contemporaneously furnished to the Administrative Agent or any Lender by or on behalf of the Borrower for purposes of or in connection with this Agreement or contained any transaction contemplated hereby, is true and accurate in any filing made every material respect and such information is not incomplete by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement omission of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, such information not misleading.; (lt) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition transactions contemplated in this Agreement, the Borrower and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent.each Subsidiary are generally able to pay their debts as they come due; (mu) Each the registered office of the Borrower is located at Xxxxx 0000, 000 – 0xx Xxx. X.X., Xxxxxxx, Xxxxxxx, X0X 0X0 and its Subsidiaries is in compliance with all applicable statutesthe chief executive office, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect principal place of the conduct of its business and place where the ownership Borrower keeps its books and records is located at Xxxxx 0000, 000 – 0xx Xxx. X.X., Xxxxxxx, Xxxxxxx X0X 0X0; (v) the chief executive office, principal place of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and place where the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of Guarantor keeps its Subsidiaries)books and records is located at Suite 1755, except such non-compliance that0000 X. Xxxxxxx Xxxxxxxxxx, individually or in the aggregateXxxxxx, would not reasonably be expected to result in a Material Adverse EffectXxxxx 00000. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Transatlantic Petroleum Corp.), Credit Agreement (Transatlantic Petroleum Corp.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents and the Notes (i) consummation of the transactions contemplated hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesLoan Documents. (d) This Agreement has been, and each of the Notes (other Loan Documents when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the other Loan Documents when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting the enforcement of creditors' rights generally or and by general equitable principles relating to enforceability(whether enforcement is sought by proceedings in equity or at law). (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132000, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2001, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer or the treasurer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject, in the consolidated case of said balance sheet as at March 31, 2001, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132000, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (or, to the knowledge of the Borrower’s knowledge, threatened) action threatened action, suit, investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably expected to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (York International Corp /De/), Credit Agreement (York International Corp /De/)

Representations and Warranties of the Borrower. The Borrower hereby represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as followswarrants that: (a) The Borrower (i) it is a corporation limited partnership duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Delaware and each has the partnership power and authority and the legal right to execute and deliver, and to perform its obligations under, this Trust Agreement and has taken all necessary partnership action to authorize the execution, delivery and performance of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect.Trust Agreement; (b) The this Trust Agreement has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors' rights generally, general equitable principles and implied covenant of good faith and fair dealing; (c) the execution, delivery and performance by the Borrower of this Trust Agreement and will not violate, result in a default under, or give rise to any acceleration, prepayment, repurchase or redemption obligation of the Notes Borrower or any Subsidiary which is a party to any Guarantee or Security Document as a result of (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and partnership agreement of the Borrower or any such Subsidiary or (ii) do not contravene (x) the Borrower’s charter any law, rule or by-laws or (y) law or any material contractual restriction regulation binding on the Borrower or, to the knowledge or any such Subsidiary or any contractual obligation of the BorrowerBorrower and will not result in, or require, the creation or imposition of any Lien on any of its or their respective properties or revenues pursuant to any such law, rule or regulation or contractual obligation, other contractual restriction binding on than the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance Liens created by the Borrower of this Agreement or the Notes.Security Documents; and (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legalno consent or authorization of, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014filing with, or (ii) purports to affect the legalityother act by or in respect of, validity, binding effect any arbitrator or enforceability of this Agreement or any Note. (g) No proceeds governmental authority and no consent of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are other Person is required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with the execution, delivery, performance, validity or enforceability of this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries)Trust Agreement, except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of for any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, foregoing that have been obtained and the associated laws, rules, regulations are in full force and orders, collectively, “Sanctions Law”)effect. (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Trust Agreement (Sprint Spectrum Finance Corp), Trust Agreement (Sprint Spectrum Finance Corp)

Representations and Warranties of the Borrower. The ---------------------------------------------- Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction indicated in the recital of the respective states in which its principal operating facilities are located, except, with respect parties to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectAmendment. (b) The execution, delivery and performance by the Borrower of this Agreement Amendment and the Notes (i) Loan Documents, as amended hereby, to which it is or is to be a party, and the consummation of the transactions contemplated hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not (i) contravene (x) the Borrower’s 's charter or by-laws laws, (ii) violate any law, rule or regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), or any order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (yiv) law except for the Liens created under Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrowerits Subsidiaries. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and or performance by the Borrower of this Agreement Amendment or any of the NotesLoan Documents, as amended hereby, to which it is or is to be a party. (d) This Agreement and the Notes (when delivered hereunder) have Amendment has been duly executed and delivered by the Borrower. This Amendment and constitute each of the other Loan Documents, as amended hereby, to which the Borrower is a party are legal, valid and binding obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (oraction, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against the Borrower affecting any Loan Party or any of its Subsidiaries Subsidiaries, including any Environmental Action, pending or threatened before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect Material Adverse Effect (other than as set forth on Schedule 4.01(j) to the business, condition (financial or otherwiseCredit Agreement) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement Amendment or any Noteof the other Loan Documents, as amended hereby, or the consummation of any of the transactions contemplated hereby. (f) The representations and warranties contained in each Loan Document are true and correct on and as of the date of the Amendment, other than any such representations or warranties that, by their terms, refer to a specific date other than the date of this Amendment, in which case as of such specific date. (g) No proceeds of any Loan will be used directly or indirectly for Defaults exists under the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)Credit Agreement. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Credit Agreement (Telespectrum Worldwide Inc), Credit Agreement (Telespectrum Worldwide Inc)

Representations and Warranties of the Borrower. 1. The principal qualification of the Borrower shall meet the requirements of relevant laws, administrative regulations and normative documents; 2. The Borrower represents has been fully authorized to sign this Contract and warrantsother relevant documents and has the ability Capable of executing and performing its responsibilities; 3. The Borrower’s execution of this Contract and other relevant documents and performance of its responsibilities herein will not violate or violate any laws, as regulations and normative documents, and shall not constitute a violation under this Contract Covenantal act; 4. The Borrower does not currently have any outstanding litigation, arbitration or administrative penalties, or according to the Borrower is aware of any lawsuit, arbitration or administrative penalty that may be filed against its assets or earnings; 5. The borrower cooperates with the lender in loan payment management, post-loan management and related inspections; 6. The financial statements provided by the borrower truly reflect the financial position of the Effective Date (other than with respect to paragraph (l)) borrower; 7. The application materials in this contract and as the guarantee contract and the relevant borrowers and guarantors. The representations and warranties of the Closing Datemortgagor, as follows: (a) The Borrower (i) is a corporation duly organized pledgee, collateral and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities project information are locatedtrue, exceptcomplete, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations accurate, and there are no false, concealed, misleading statements or material omissions. 8. The borrower understands and agrees: When the lender needs to make adjustments to funds, accounts, data, etc. due to system errors, page display errors, improper profits of the Borrower enforceable against borrower, etc., the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating borrower agrees to or limiting creditors’ rights generally or by equitable principles relating authorize the lender to enforceabilitymake adjustments on its own. Adjust and actively cooperate. 9. The borrower knows and agrees that the lender is not an Internet service provider. When the borrower uses the loan, the relevant funds may not be immediately recorded due to system transmission delays and other reasons. The actual recording time shall be subject to the results recorded by the lender’s system. 10. The lender reserves the right to suspend or terminate loan disbursements and adjust loan limits (iincluding but not limited to the total size limit that can be disbursed on the day, the single limit, etc.) based on factors such as borrower qualifications, historical repayment status, interest rate policies, changes in market environment, use of funds, etc. The consolidated balance sheets borrower has no objection to the unilateral right to such matters as the loan limit, daily limit and monthly limit) and the number of loans. 11. Unless there is reliable and definite evidence to the Borrower contrary, any legal documents submitted, confirmed or signed by the borrower in the form of electronic data and its Consolidated Subsidiaries as at September 30documents, 2013vouchers, records and other related materials generated, produced or retained by the lender’s designated channels (including but not (limited to the term, amount, interest rate, repayment method, etc. of each loan), all constitute conclusive evidence that effectively proves the rights and obligations between the parties to the contract, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished borrower has no objection to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently appliedthis. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Working Capital Loan Contract (HUHUTECH International Group Inc.), Working Capital Loan Contract (HUHUTECH International Group Inc.)

Representations and Warranties of the Borrower. In order to induce the Bank to make the Loans, the Borrower makes the following representations, warranties and promises: 3.1 The execution, delivery and performance of the Loan Documents are not in contravention of law or the terms of other documents, agreements or undertakings to which the Borrower represents is a party or by which such party is bound. No approval of any person, corporation, governmental body or other entity not provided herewith is a prerequisite to the execution, delivery and warrantsperformance of the Loan Documents or any of the documents submitted to the Bank in connection with the Loans, or to insure the validity or enforceability thereof. 3.2 When executed by the Borrower, the Loan Documents will constitute the legally binding obligations of the Borrower, enforceable in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors' rights generally. 3.3 The construction of the Improvements upon the Premises and the use and operation of the Improvements and the Premises does and will comply with all applicable federal, state and local land use, environmental and other statutes, laws and regulations and the Project has received and will receive all necessary Permits. 3.4 Subject to any limitations stated therein or in connection therewith, the Financial Statements, all earning statements, projections, budgets and pro formas, cost certification documents, disbursement requests, invoices, loan applications, mechanics' lien affidavits, financial data and all other documents which have been or shall hereafter be furnished to the Bank to induce it to enter into this Agreement or to continue to perform and to make disbursements hereunder, do to the best of their knowledge and belief, or will, fairly represent the financial condition of the Borrower and are, or will be, accurate, true and complete in all material respects. 3.5 The Financial Statements have been prepared in accordance with generally accepted accounting principles, consistently applied, and fairly and completely set forth the financial position of the Borrower as of their respective dates. Except as previously disclosed in writing to the Effective Date (Bank, since the date of the Financial Statements, there has been no significant assignment of assets or material change or threatened change in the financial condition, operation or business prospects of the Borrower. 3.6 There is not now pending against the Borrower, nor is there threatened, any litigation, investigation, eminent domain or any proceedings before any court or administrative or governmental agency, the outcome of which might adversely affect the financial condition or the continued operation of the Borrower or the development or operation of the Premises and Improvements other than those listed in Schedule 3.6. There exists no unrepaired casualty with respect to paragraph (l)) and as the Project. 3.7 The Borrower is the owner of the Closing DatePremises, in fee simple, and there are no liens or encumbrances which will be prior to the respective liens of the Mortgage and other Loan Documents, except for those acceptable to the Bank as shown on the commitment for title insurance. The liens, security interests and assignments created by the Loan Documents will, when granted, be valid, effective, properly perfected and enforceable liens, security interests and assignments. 3.8 To the Borrower's knowledge, the Premises have not been used for the generation, treatment, storage or transportation of "hazardous waste", as follows:that term is defined under applicable federal and state law. In the event that the Borrower becomes aware of the presence of any such substance on the Premises or the Borrower becomes aware of the commencement of any state, federal, local or private environmental or land use investigation or enforcement proceeding or threat thereof, the Borrower will immediately provide written notice thereof to the Bank. 3.9 To the Borrower's knowledge, the are no underground fuel storage tanks located on the Premises. 3.10 The Premises are not located in a Flood Hazard Zone, so-called, or if they are so located, the Borrower will procure flood insurance and will deliver certificates for such insurance at closing. 3.11 All utility services necessary for the use and operation of the Project are available on or at the boundary of the Premises or by unencumbered easement and have sufficient capacity for the use and operation of the Project. 3.12 Any borrowings or payments made by the Borrower pursuant to the Loan Agreement do not and will not render the Borrower insolvent, the Borrower is not contemplating either the filing of a petition under any state or federal bankruptcy or insolvency laws or the liquidating of all or a major portion of its property, and the Borrower has no knowledge of any person contemplating the filing of any such petition against it, including the properties and assets reflected in its financial statement referred to herein. 3.13 No statement of fact made by or on behalf of the Borrower in this Agreement, or in any certificate or schedule furnished to the Bank pursuant hereto, contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein or herein not misleading. There is no fact presently known to the Borrower which has not been disclosed to the Bank which materially affects adversely, or as far as the Borrower can foresee, will materially affect adversely, the property, business, operations or condition (afinancial or otherwise) of the Borrower, the Premises or the Improvements. 3.14 The Borrower (i) has filed all federal, state and local tax returns required to be filed and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments. 3.15 The making of the Loans or the execution and delivery of the Loan Documents will not subject the Bank to any claim for a brokerage commission. 3.16 The Borrower has paid in full or has made other satisfactory arrangements for payment of all premiums for insurance policies being delivered to the Bank. 3.17 All warranties and representations heretofore made by the Borrower to the Bank in connection with efforts to obtain the Loans, including all projections, budgets and pro formas, are incorporated herein by reference and shall be deemed to be material and to have been relied upon by the Bank in making the Loans. 3.18 The Borrower is a corporation corporation, duly organized authorized and validly existing under the laws of the State of New Jersey Delaware, with powers adequate to own its properties, and to carry on its business as presently conducted by it (ii) is duly qualified and in good standing under including, but not limited to, within the laws State of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) Hampshire). The execution, delivery and performance by of the Loan Documents to which the Borrower is a party are not in contravention of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter Articles or byBy-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, or of any other contractual restriction binding on provisions of law or the Borrower. (c) No authorization terms of any documents, agreements or approval or other action by, and no notice undertakings to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by which the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally is a party or by equitable principles relating to enforceabilitywhich such party is bound. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Loan Agreement (Seachange International Inc), Loan Agreement (Seachange International Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) Notes, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement has been, and each of the Notes (when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September December 30, 20132001, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of PricewaterhouseCoopers LLP, independent public accountants, and the condensed Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2002, and the related condensed Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject in the consolidated case of said balance sheet as at March 31, 2002, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments and to the absence of footnote disclosure, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June . Between December 30, 2014 2001 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013hereof, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would is pending or threatened on the date hereof and is reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not, and immediately after the application by the Borrower of the proceeds of each Advance will not be an “investment company”, or a company “controlledby an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (kh) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after After giving effect to the Acquisition and the making of the Loans and application of the proceeds thereofof each Advance, on a consolidated basis, Solvent. (m) Each not more than 25% of the value of the assets of the Borrower and its Subsidiaries is (as determined in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect good faith by the Borrower) subject to the provisions of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect Section 5.02(a) or subject to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged restriction contained in any activity agreement or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of instrument between the Borrower and its Subsidiaries any Lender or any Affiliate of any Lender relating to Debt and Affiliates has instituted and maintained policies, procedures and a system within the scope of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (ivSection 6.01(d) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business consist of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawsrepresented by Margin Stock.

Appears in 2 contracts

Sources: 364 Day Credit Agreement (Washington Post Co), Credit Agreement (Washington Post Co)

Representations and Warranties of the Borrower. The Borrower hereby represents and warrants, warrants to Agent and the Banks as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, date hereof as follows: (a) The Borrower (i) is a corporation duly organized execution and validly existing under delivery of this Amendment and the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) its obligations hereunder are within the Borrower’s corporate powers's powers and authority, have been duly authorized by all necessary corporate action, action and (ii) do not and will not contravene (x) or conflict with the Borrower’s charter Certificate of Incorporation or byBy-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (cb) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance The Agreement (as amended by the Borrower of this Agreement or the Notes. (dAmendment) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and Other Agreements constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective termsterms by Agent and the Banks against Borrower, and Borrower expressly reaffirms each of its obligations under the Agreement (as amended by this Amendment) and each of the Other Agreements, including, without limitation, Borrower's Liabilities. Borrower further expressly acknowledges and agrees that Agent has a valid, duly perfected, first priority and fully enforceable security interest in and lien against each item of Collateral except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and otherwise set forth in the Borrower’s Report on Form 10-Q for Agreement. Borrower agrees that it shall not dispute the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position validity or enforceability of the Borrower Agreement (as it was stated before and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwiseafter this Amendment) or results of operations any of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower Other Agreements or any of its Subsidiaries before respective obligations thereunder, or the validity, priority, enforceability or extent of Agent's security interest in or lien against any courtitem of Collateral, in any judicial, administrative or other proceeding; (c) No consent, order, qualification, validation, license, approval or authorization of, or filing, recording, registration or declaration with, or other action in respect of, any governmental body, authority, bureau or agency or arbitrator, other Person is required in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower connection with the Securities and Exchange Commission on execution, delivery or before October 5, 2014performance of, or (ii) purports to affect the legality, validity, binding effect or enforceability of, this Amendment; and (d) The execution, delivery and performance of this Agreement Amendment by Borrower does not and will not violate any law, governmental regulation, judgment, order or decree applicable to Borrower and does not and will not violate the provisions of, or constitute a default or any Note. (g) No proceeds event of default under, or result in the creation of any Loan will be used directly security interest or indirectly for the purpose lien upon any property of purchasing Borrower pursuant to, any indenture, mortgage, instrument, contract, agreement or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The other undertaking to which Borrower and its Subsidiaries have filed (is a party or have obtained extensions of the time is subject or by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually real or in the aggregate, would not reasonably personal property may be expected to result in a Material Adverse Effectbound. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 2 contracts

Sources: Loan and Security Agreement (Sigmatron International Inc), Loan and Security Agreement (Sigmatron International Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrantswarrants to, as of and covenants with the Effective Date (other than with respect to paragraph (l)) and Lender, that, as of the Closing Date, except as followsset forth on the Disclosure Report: (a) Exhibit G hereto sets forth the organizational structure of the --------- Borrower, and the equity interests and holders therein. The Borrower (i) is a corporation duly organized and limited partnership validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Delaware and is qualified to do business in each jurisdiction where the nature of its business or location of the Properties requires it to be so qualified. The General Partner is a corporation validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in each jurisdiction where the nature of its business or location of the Properties requires it to be so qualified. Neither the General Partner nor the Borrower has engaged in any business unrelated to the ownership of the Properties. Neither the General Partner nor the Borrower has assets other than those related to the Properties; (b) The Borrower has, and at relevant times has had, the requisite power and authority to own its assets and conduct its business, to execute and deliver each of the respective states in Transaction Documents and all Operational Agreements to which its principal operating facilities are located, except, with respect the Borrower is a party and to this clause (ii) only, in states where carry out the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect.transactions contemplated thereby; (bc) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within each of the Borrower’s corporate powers, Transaction Documents and (ii) the Operational Agreements to which the Borrower is a party have been duly and validly authorized by all necessary corporate actionactions and proceedings on the part of the General Partner and the Borrower, and no further approvals or filings of any kind, including, without limitation, any approval of or filing with any Governmental Authority, are required as a condition thereof; (d) Neither the execution and delivery of each of the Transaction Documents and the Operational Agreements, nor the fulfillment of or compliance with the terms and conditions thereof: (i) will conflict with or result in any breach or violation of any law, rule or regulation issued by any Governmental Authority, or any judgment or order applicable to the Borrower or the General Partner, or to which the Borrower or the General Partner or any of the Properties are subject; (ii) will conflict with or result in any breach or violation of, or constitute a default under, any of the provisions of the Amended and Restated Agreement of Limited Partnership of the Borrower, the Restated Certificate of Incorporation of the General Partner, or any agreement or instrument to which the Borrower or the General Partner is a party or to which the Borrower or the General Partner or any of the Properties is subject; or (iii) will result in or require the creation of any Lien on any of the Properties except Permitted Exceptions and Liens in favor of the Lender; (e) Each of (i) the Transaction Documents and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on Operational Agreements to which the Borrower oris a party, and, to the knowledge Best Knowledge of the Borrower, any other contractual restriction binding on each of the Borrower. (c) No authorization or approval or other action byOperational Agreements, and no notice if any, to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by which the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have is not a party, has been duly executed and delivered by the Borrower and constitute to the Best Knowledge of the Borrower, the other parties thereto and constitutes the legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by its terms subject to the effects of bankruptcy, insolvency, reorganization, moratorium or and other similar laws relating to or limiting affecting creditors' rights generally or by and general equitable principles relating to enforceability. (iwhether considered in a proceeding in equity or at law) The consolidated balance sheets To the Borrower's Best Knowledge, each of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of Operational Agreements to which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on it is not a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there party has been no material adverse change in duly executed and delivered by the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended.parties thereto; (f) There is no Action pending (or, to the Borrower’s knowledge, threatened) action or proceeding against which the Borrower or the General Partner is a party or to which any of its Subsidiaries before any courtProperty is subject, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Planindirectly, and, to the Best Knowledge of the Borrower and, based on a certification to the Borrower by the Manager, of the Manager, no such Action is threatened or contemplated by any Person, in each case, other than an Action that does not involve an amount in controversy in excess of $25,000; (g) The Borrower has not received notice of, and does not have any knowledge of, any violations of any Legal Requirements affecting any Property or the construction, development, use, operation, maintenance or management thereof, except as set forth in the Exhibits and Schedules to this Agreement; (h) Neither the Borrower nor the General Partner has any subsidiaries; (i) Except for the Debt, since its inception, the Borrower has not incurred Indebtedness other than Purchase Money Security Interests and the debt to the Sumitomo Trust Bank Co., Ltd., New York Branch, described in the Disclosure Report, which has been paid in full; (j) The Borrower does not have any employees; (k) A true and complete copy of each Ground Lease (including all amendments, agreements, side letters and documents relating thereto) has been delivered to the Lender. Each Ground Lease is unmodified and in full force and effect and there is no material default by the Borrower thereunder nor, to the Borrower's Best Knowledge, by the lessor thereunder, and, to the Borrower's Best Knowledge, no event has occurred and is continuing which, with the passage of time and/or the giving of notice, would constitute a default or event of default under any Ground Lease; (l) True and complete copies of the Operational Agreements (including all amendments, agreements, side letters and all other material documents relating thereto other than those effected in the ordinary course of business and which individually or in the aggregate do not have an Individual Material Adverse Effect) have been made available to the Lender; each such agreement is unmodified and in full force and effect; to the Best Knowledge of the Borrower, each Multiemployer Planthere is no default by any party thereunder; and no event has occurred and is continuing which, is with the passage of time and/or the giving of notice, would constitute a default or event of default by the Borrower thereunder in compliance such circumstances that such default or event of default might have an Individual Material Adverse Effect. All necessary consents to the transactions described in all material respects with, and has the Transaction Documents required by such agreements have been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State lawobtained. Without limiting the foregoingSince its inception, neither the Borrower nor the General Partner has entered into any of its Subsidiaries has incurred any liability, agreements or obligations other than premiums payable the Transaction Documents, the Operational Agreements and other agreements relating to the Properties entered into in the ordinary course of business; (m) All necessary governmental consents, if any, to the PBGC established under ERISA transactions described in connection with any Plan or Multiemployer Plan.the Transaction Documents have been obtained; (jn) The Operating Budget annexed hereto as Exhibit H contains all --------- anticipated operating expenses for the Properties for the year ending December 31, 1997. The Capital Budget annexed hereto as Exhibit I contains all --------- anticipated Capital and FF&E Expenditures for the Properties for the year ending December 31, 1997; (o) All Permits material to the operations of each Property have been obtained and are in full force and effect and are in the Borrower's name or available for its use; (p) Each Property has available to it adequate parking to comply with all Legal Requirements and to permit the operation of the Property as a hotel conforming to at least the standards applicable to Fairfield Inn by Marriott hotels and is in compliance with the Management Agreement; (q) The Borrower is not subject to any United States or state income, unincorporated business, capital, franchise or similar gross income or income based taxes; (i) Neither the Borrower, nor any ERISA Affiliate of the Borrower, maintains, sponsors, contributes to or is obligated to contribute to, or during the five (5) years ending on the date of the execution and delivery of this Agreement, has maintained, sponsored, contributed to or was obligated to contribute to, any Plan; (ii) The Borrower does not, and is not obligated to, maintain, sponsor or contribute to any Welfare Plan; (iii) The assets of the Borrower are not nor are they deemed "plan assets", whether by operation of law or under regulations promulgated under ERISA; (s) The Borrower (1) has not entered into any Transaction Document with the actual intent to hinder, delay, or defraud any creditor and (2) has received reasonably equivalent value in exchange for its obligations under the Transaction Documents. The fair saleable value of the Borrower's assets is and immediately after the execution and delivery of the Transaction Documents will be greater than the Borrower's probable liabilities, including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured. The Borrower's assets do not and immediately after the execution and delivery of the Transaction Documents will not constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. The Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of the Borrower); (t) The Borrower has not sustained any loss or interference with its business from fire, explosion, flood or other calamity, or from any labor dispute or governmental action, order or decree, nor has there been any material adverse change, nor any other development or event that, in each case, may have an Individual Material Adverse Effect; (u) The Security Documents, when duly executed and delivered, and (to the extent required or contemplated) filed or recorded, will create a valid and enforceable first priority perfected security interest in the Borrower's right, title and interest in and to the rights and properties described therein, as to which perfection may be effected by such filing or recording, for the benefit of the Lender, subject only to Permitted Exceptions; (v) The Borrower is not (1) an "investment company”, " or a company "controlled" by an "investment company”, ," within the meaning of the Investment Company Act of 1940, as amended. , (k2) No statement, information, report, representation, a "holding company" or warranty made by a "subsidiary company" of a "holding company" or an "affiliate" of either a "holding company" or a "subsidiary company" within the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf meaning of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Public Utility Holding Company Act of 19771935, as amended, or nor (3) subject to any other applicable anti-bribery federal or anti-corruption laws, rules, regulations state law or orders (collectively, “Anti-Corruption Laws”) regulation which purports to restrict or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and regulate its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed ability to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.borrow money;

Appears in 2 contracts

Sources: Loan Agreement (Fairfield Inn by Marriott LTD Partnership), Loan Agreement (Fairfield Inn by Marriott LTD Partnership)

Representations and Warranties of the Borrower. The As a material inducement to the Lender to enter into this Agreement, the Borrower represents and warrantsthe Guarantors hereby represent, as warrant and agree that: 4.1. Each of the Effective Date (other than with respect to paragraph (l)) Borrower and as of the Closing Date, as follows: (a) The Borrower (i) each Guarantor is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey its jurisdiction of incorporation and each has all requisite authority and legal right to incur the obligations provided for hereunder and under the Note and to execute and deliver and to perform and observe the provisions of this Agreement and the respective states in Loan Documents (as hereinafter defined) to which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in it is a Material Adverse Effectparty. (b) 4.2. The execution, delivery making and performance by the Borrower and the Guarantors of this Agreement and the Notes (i) are within other Loan Documents has been, and each Note by the Borrower’s corporate powersBorrower shall have been, have been duly authorized by all necessary corporate action, . 4.3. This Agreement and (ii) do not contravene (x) the Borrower’s charter each other Loan Document to which it is party constitutes or by-laws or (y) law or any material contractual restriction will constitute a legal and binding on the Borrower or, to the knowledge obligation of the Borrower, any enforceable against the Borrower in accordance with their terms. This Agreement and each other contractual restriction Loan Document to which it is a party constitutes a legal and binding on obligation of the Guarantors, enforceable against them in accordance with their terms 4.4. The chief place of business and chief executive office of the Borrower and the Guarantors and the office where the Borrower and the Guarantors shall keep the Collateral and their records concerning the Collateral are located at Borrower's and Guarantors' address set forth above. (c) 4.5. No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party not already undertaken is required for the due execution, delivery exercise by Lender of its rights and performance by the Borrower of this Agreement or the Notesremedies hereunder. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) 4.6. The Borrower and its Subsidiaries have filed (or have obtained extensions of each Guarantor possesses all licenses, permits and other authorizations required by any applicable governmental authority for the time by which they are required to file) all United States Federal income tax returns operation and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including is otherwise in compliance with all applicable Environmental Laws with respect laws, rules and regulations of any such governmental authority. 4.7. The Borrower has timely filed all reports required to any real estate asset or governing its business be filed pursuant to the Securities Exchange Act of 1934, as amended and the requirements of any permits issued rules under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority regulations promulgated thereunder (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”"Exchange Act"). (ii) None 4.8. All reasonable expenses of Lender's counsel related to its negotiation and review of this Agreement, the Borrower or any of its Subsidiaries or their respective directorsNote, officers or employees or, to the knowledge of Guaranty and the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans Security Agreement will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawsborne by Borrower.

Appears in 1 contract

Sources: Loan Agreement (Scepter Holdings Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Delaware and each of the respective states in which has all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals and all intellectual property) to own or lease and operate its principal operating facilities are located, except, with respect properties and to this clause (ii) only, in states where the failure carry on its business as now conducted and as proposed to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectconducted. (b) The execution, delivery and performance by the Borrower of this Agreement and each other Loan Document to which it is a party, and the Notes (i) consummation of the transactions contemplated hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notesany other Loan Document. (d) This Agreement has been, and the Notes (each other Loan Document to which it is a party when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each other Loan Document to which it is a party when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar other laws relating to or limiting affecting the enforcement of creditors' rights generally or by equitable principles relating to enforceabilitygenerally. (ie) The consolidated Consolidated balance sheets sheet of the Borrower Parent and its Consolidated Subsidiaries as at September 30December 31, 20131998, and the related Consolidated statements of income and cash flows of the Borrower Parent and its Consolidated Subsidiaries for the fiscal year Fiscal Year then ended, accompanied by an opinion of Arthur Andersen LLP, independent public accountants, xxxx cexxxxxxx by the chief financial officer of the Parent, together with a certificate of said officer stating that such information is accurate and correct in all material respects, copies of which have been furnished to the Administrative Agenteach Lender Party, fairly present the consolidated Consolidated financial condition of the Borrower Parent and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower Parent and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of . Since June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20131999, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There Except as disclosed on Schedule IV, there is no pending (oraction, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against or otherwise affecting the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower of any of its Subsidiaries, including without limitation, any Environmental Action, before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would be reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Noteother Loan Document or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within Margin Stock, and no proceeds of any Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the meaning purpose of Regulation U issued by the Board of Governors of the Federal Reserve System)purchasing or carrying any Margin Stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions No proceeds of any Advance will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the time Securities Exchange Act of 1934, other than securities issued by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse EffectParent. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an "investment company”, ," an "affiliated person" of an "investment company," or a company “controlled” by "promoter" or "principal underwriter" for an "investment company”, within the meaning of ," as such terms are defined the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, . Neither the making of any Advances nor the application of the proceeds therefrom or warranty made repayment thereof by the Borrower in this Agreement or furnished to Borrower, nor the Administrative Agent consummation of the transactions contemplated hereby, will violate any provision of such Act or any Lender by rule, regulation or on behalf order of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingthereunder. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Consolidated Freightways Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement Agreement, the Notes or the Notesany other Loan Document to which it is a party. (d) This Agreement has been, and each of the Notes (and each of the other Loan Documents to which it is a party when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes and each of the other Loan Documents to which it is a party when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ law affecting creditors rights generally or by equitable principles relating to enforceabilitygenerally. (ie) The consolidated balance sheets Audited Statements of the Borrower Borrower, DECO and its Consolidated Subsidiaries as at September 30, 2013, MichCon and the related statements of income and cash flows Unaudited Statements of the Borrower Borrower, DECO and its Consolidated Subsidiaries for the fiscal year then endedMichCon, copies of each of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject in the consolidated case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition condition, results of operations and cash flows of the Borrower relevant Persons and its Consolidated Subsidiaries entities, as at such date the dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such dateperiods therein indicated, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of . Since June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132003, there has been no material adverse change Material Adverse Change, except as shall have been disclosed or contemplated in the businessSEC Reports, condition (financial or otherwise) or results of operations of including the Borrower and its SubsidiariesBorrower's Current Report on Form 8-K dated August 27, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended2003. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its the Significant Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement Agreement, any Note or any Noteother Loan Document or the consummation of the transactions contemplated hereby and there has been no adverse change in the status of any Disclosed Litigation, or its financial effect on the Borrower or any of the Significant Subsidiaries from that disclosed or contemplated in the SEC Reports that could be reasonably likely to have a Material Adverse Effect. (g) The operations and properties of the Borrower and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, except as disclosed or contemplated in the SEC Reports, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect. (h) No proceeds ERISA Event has occurred or is reasonably expected to occur with respect to any Plan. (i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status. (j) Neither the Borrower nor any Loan will ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan. (k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be used directly in reorganization or indirectly to be terminated, within the meaning of Title IV of ERISA. (l) Except as set forth in the financial statements referred to in subsection (e) above, the Borrower and its Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106. (m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). , and no proceeds of any Revolving Credit Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock; and after applying the proceeds of each Revolving Credit Advance hereunder, margin stock (hwithin the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) The constitutes less than twenty-five percent (25%) of the value of those assets of the Borrower and its Subsidiaries have filed (which are subject to any limitation on sale or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all pledge, or any other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effectrestriction hereunder. (in) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred is, or after the making of any liabilityRevolving Credit Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other than premiums payable in the ordinary course of businesstransactions contemplated hereby, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not will be, an "investment company", or a company “controlled” by an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company”, " (within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (iio) None At all times the Borrower is exempt from being required to seek approval to perform its obligations under the Loan Documents pursuant to Rule 2 of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, Rules and Regulations promulgated pursuant to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Public Utility Holding Company Act of 19771935, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Dte Energy Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, subject to any applicable debt limitations established by the Board of Directors of the Borrower, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132010, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants, copies of which have been furnished to the Administrative Agenteach Lender, fairly present in all material respects the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. applied and (ii) The unaudited consolidated balance sheets of except as disclosed in filings with the Borrower Securities and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished Exchange Commission prior to the Administrative Agentdate hereof, fairly presentsince December 31, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132010, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Effect. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as is not disclosed in filings made a filing by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, and would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Following application of the proceeds of each Advance, not more than 25 percent of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated basis) that are subject to a restriction on sale, pledge, or disposal under this Agreement will be represented by margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (At&t Inc.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower It (i) is a corporation duly organized and formed, validly existing and in good standing under the laws of the State jurisdiction of New Jersey and its formation, (ii) is duly qualified and in good standing in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not have a material adverse effect on its business, condition (financial or otherwise), operations, performance, properties or prospects and (iii) has all requisite power and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. (b) All of the outstanding Capital Stock of all of such Subsidiaries has been validly issued, is fully paid and non-assessable and is owned by Borrower or one or more of its Subsidiaries free and clear of all Liens, except those created by the Collateral Documents and any restrictions or encumbrances on transferability of securities imposed by applicable federal securities laws. Each such Subsidiary (i) is duly organized or formed, validly existing and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are locatedorganization or formation, except, with respect to this clause (ii) only, is duly qualified and in states good standing in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be so qualified or in good standing licensed would not reasonably have a material adverse effect on its business, condition (financial or otherwise), operations, performance, properties or prospects and (iii) has all requisite power and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be expected to result in a Material Adverse Effectconducted. (bc) The execution, delivery and performance by the each Borrower of this Agreement Agreement, the Note, if any, and each other Loan Document to which it is or is to be a party, and the Notes (i) other transactions contemplated hereby, are within the Borrower’s corporate 's powers, have been duly authorized by all necessary corporate partnership action, and do not (i) contravene Borrower's partnership agreement, (ii) do not contravene violate any law (xincluding, without limitation, the Securities Exchange Act of 1934 and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the Borrower’s charter breach of, or by-laws or (y) law or constitute a default under, any material contractual restriction contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on the Borrower or, to the knowledge of the or affecting Borrower, any of its Subsidiaries or any of their properties or (iv) result in or require the creation or imposition of any Lien (other contractual restriction binding than those created under the Collateral Documents) upon or with respect to any of the properties of Borrower or any of its Subsidiaries. Neither Borrower nor any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, the violation or breach of which is reasonably likely to have a material adverse effect on the Borrowerbusiness, condition (financial or otherwise), operations, performance, properties or prospects of Borrower or its Subsidiaries taken as a whole. (cd) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or any other Loan Document to which it is or is to be a party, or the Notesother transactions contemplated hereby except (i) for authorizations, approvals, actions, notices or filings described in Schedule 4.01(d) hereto, which authorizations, approvals, actions, notices or filings have been obtained or made and are in full force and effect, (ii) for authorizations, approvals, actions, notices, or filings the failure of which to obtain or make and maintain in full force and effect could not reasonably be expected to have a material adverse effect 18 15 on its business, condition (financial or otherwise), operations, performance, properties or prospects, and (iii) the filings referred to in Schedule 5 to the Security Agreement. (de) This Agreement has been, and the Notes (each other Loan Document when delivered hereunder) hereunder will have been been, duly executed and delivered by Borrower. This Agreement is, and constitute each other Loan Document when delivered hereunder will be the legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting the enforcement of creditors' rights generally or and by general equitable principles relating to enforceabilityprinciples. (if) Upon execution and delivery thereof by the parties thereto, each of the Collateral Documents will be effective to create in favor of Lender a legal, valid and enforceable security interest in the collateral described therein. Uniform Commercial Code financing statements have been filed in each of the jurisdictions listed on Schedule 5 to the Security Agreement or arrangements have been made for such filing in such jurisdictions, and Patent and Trademark Office filings have been arranged by Lender, and upon such filing, and upon the taking of possession by Lender of the Pledged Securities referred to in any of the Collateral Documents and any other collateral the security interests in which may be perfected only by possession, such security interests will constitute first priority perfected liens on, and security interests in, all right, title and interest of the debtor party thereto in the collateral described therein, except as permitted by Section 5.02(a). (g) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20131999, and the related statements Consolidated statement of income and cash flows flow of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Arthxx Xxxexxxx, X.X., xxdependent public accountants, and the unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2000, and the related Consolidated statement of income and cash flow of the Borrower and its Subsidiaries for the three months then ended, copies of which have been furnished to the Administrative AgentLender, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently appliedapplied on a consistent basis. (iih) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30No information, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been exhibit or report furnished to the Administrative Agent, fairly present, Lender in conformity which generally accepted accounting principles applied on a basis consistent connection with the financial negotiation of the Loan Documents or pursuant to the terms of the Loan Documents contained as of the date such information, exhibit or report was so furnished any untrue statement of a material fact or omitted to state a material fact necessary to make the statements referred to in clause made therein not misleading. (i) of this paragraph (e)There is no action, suit, investigation, litigation or proceeding affecting, pending or, to the consolidated financial position knowledge of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period Borrower, threatened before any court, governmental agency or arbitrator that (subject i) could reasonably be expected to normal year-end adjustments). (iii) Since September 30, 2013, there has been no have a material adverse change in effect 19 16 on the business, condition (financial or otherwise) ), operations, performance, properties or results of operations prospects of the Borrower and its Subsidiaries, Subsidiaries taken as a wholewhole or (ii) purports to affect the legality, as shown on validity or enforceability of this Agreement, any other Loan Document or the consolidated balance sheet as consummation of such date and the related consolidated statement of net income for the fiscal year then endedtransactions contemplated hereby. (fj) There The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying "margin stock" within the meaning of such quoted term under Regulation U of the Federal Reserve Board as now and from time to time hereafter in effect, and no pending proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (ork) Except as set forth on Schedule 4.01(k), no ERISA Event has occurred or is reasonably expected to the Borrower’s knowledge, threatened) action or proceeding against occur with respect to any Plan of the Borrower or any ERISA Affiliate. (l) Neither Borrower nor any of its Subsidiaries before ERISA Affiliates has incurred or is reasonably expected to incur any courtWithdrawal Liability to any Multiemployer Plan. (m) Neither Borrower nor any of its ERISA Affiliates has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, governmental agency within the meaning of Title IV of ERISA, and no Multiemployer Plan to which Borrower or arbitrator, in which there any ERISA Affiliate belongs is likely reasonably expected to be an adverse decision in reorganization or to be terminated, within the meaning of Title IV of ERISA. (n) Neither the business nor the properties of Borrower or any Subsidiary have been affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that (i) would could reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise) ), operations, performance, properties or results prospects of operations of the Borrower and its Subsidiaries, Subsidiaries taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (ho) The operations and properties of Borrower and each of its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance comply in all material respects withwith all Environmental Laws and neither utilize nor contain nor are affected by any Hazardous Materials that are not treated in material compliance with all Environmental Laws, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any material liability, other than premiums payable in contingent or otherwise, under any Environmental Law that could reasonably be expected to have a material adverse effect on the ordinary course of business, to the PBGC established under ERISA in connection with any Plan condition (financial or Multiemployer Planotherwise), operations, performance, properties or prospects of Borrower and its Subsidiaries taken as a whole. (jp) The Each of Borrower and its Subsidiaries has filed, has caused to be filed or has been included in all tax returns (Federal, state, local and foreign) required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and 20 17 penalties, (i) the amount of which, either individually or in the aggregate, could reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), operations, performance, properties or prospects of Borrower and its Subsidiaries taken as a whole or (ii) the amount, applicability or validity of which is being contested in good faith and by appropriate proceedings and with respect to which the Borrower or such Subsidiary, as the case may be, has established adequate reserves in accordance with generally accepted accounting principles. Neither the Borrower nor any of its Subsidiaries knows of any basis for any other tax, fee or charge that either individually or in the aggregate, could have a material adverse effect on the business, condition (financial or otherwise), operations, performance, properties or prospects of Borrower and its Subsidiaries taken as a whole. (q) Borrower is not an "investment company", or a company “controlled” by an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company", within the meaning of as such terms are defined in the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, . Neither the making of the Advance nor the application of the proceeds or warranty made repayment thereof by the Borrower in this Agreement or furnished to Borrower, nor the Administrative Agent consummation of the other transactions contemplated hereby, will violate any provision of such Act or any Lender by rule, regulation or on behalf order of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingthereunder. (lr) The Set forth on Schedule 4.01(r) hereto is a complete and accurate list of all material patents, trademarks, trade names, service marks and copyrights, and all applications therefor and licenses thereof, owned by Borrower and each of its Subsidiaries areSubsidiaries, showing as of the Closing Datedate hereof the jurisdiction in which registered, after giving effect to the Acquisition registration number, the date of registration and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solventexpiration date. (ms) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property There are no Liens (including compliance with all applicable Environmental Laws with respect to any real estate asset liens or governing its business and the requirements titles retained by conditional vendors) of any permits issued under such Environmental Laws with respect to nature whatsoever on any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None properties of the Borrower or any of its Subsidiaries or other than (i) Permitted Liens, (ii) Liens created pursuant to the Loan Documents and (iii) the Liens set forth on Schedule 4.01(s) hereto. The Liens granted by the Borrower to the Lender pursuant to the Security Agreement are duly perfected Liens on the Collateral. Except as disclosed on Schedule 4.01(s), neither Borrower nor any of their respective directorsits Subsidiaries is a party to any contract, officers oragreement, lease or instrument the performance of which, either unconditionally or upon the happening of an event, will result in or require the creation of a Lien on its property or assets, other than Permitted Liens, or otherwise result in a violation of this Agreement. (t) All material contracts of the Borrower and each of its Subsidiaries (i) are listed in filings made with the Securities and Exchange Commission ("Material Contracts") and (ii) to the knowledge of extent not listed in any such filings, are listed on Schedule 1 to the BorrowerSecurity Agreement. (u) The Borrower and its Subsidiaries possess all patents, employeescopyrights, agentstrademarks, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United Statestrade names, the United Kingdomservice marks, the United Nationslicenses, the European Unionpermits, the respective institutions or agencies of any authorizations and rights 21 18 thereto, in respect of the foregoing, or all of which are shown on Schedule 4.01(r) hereto. The patents, copyrights, trademarks, trade names, service marks, licenses, permits, authorizations and rights thereto set forth on Schedule 4.01(r) are, in the Borrower's reasonable business judgment, adequate for the conduct of its business as now conducted and, except for any other necessary authorizations and approvals from applicable sanctions authority (collectivelygovernmental authorities, “Sanctions”as planned to be conducted in the future, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None without known conflict with any rights of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, others that could reasonably be expected to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute have a material violation adverse effect on the business, condition (financial or otherwise), operations, performance, properties or prospects of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and taken as a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Lawswhole. (ivv) No part Borrower has been represented by independent counsel and has entered into this Agreement without any undue influence or duress of the proceeds of the Loans will be usedLender, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any and all other manner that reasonably would be expected to result Persons having an ownership interest in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political officehave, or anyone else acting in an official capacitytheir duly authorized representatives, in order to obtainbeen notified of, retain or direct business or obtain any improper advantageand consented to, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering LawsBorrower's entry into this Agreement.

Appears in 1 contract

Sources: Bridge Credit Agreement (Orbcomm Global L P)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement Agreement, the Notes or the Notesany other Loan Document to which it is a party. (d) This Agreement has been, and each of the Notes (and each of the other Loan Documents to which it is a party when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes and each of the other Loan Documents to which it is a party when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ law affecting creditors rights generally or by equitable principles relating to enforceabilitygenerally. (ie) The consolidated balance sheets Audited Statements of the Borrower Borrower, DECO and its Consolidated Subsidiaries as at September 30, 2013, MichCon and the related statements of income and cash flows Unaudited Statements of the Borrower Borrower, DECO and its Consolidated Subsidiaries for the fiscal year then endedMichCon, copies of each of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject in the consolidated case of Unaudited Statements to normal year-end SIDLEY XXXXXX XXXXX & XXXX LLP 26 audit adjustments, the Consolidated financial condition condition, results of operations and cash flows of the Borrower relevant Persons and its Consolidated Subsidiaries entities, as at such date the dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such dateperiods therein indicated, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of . Since June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132002, there has been no material adverse change Material Adverse Change, except as shall have been disclosed or contemplated in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedSEC Reports. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its the Significant Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement Agreement, any Note or any Noteother Loan Document or the consummation of the transactions contemplated hereby and there has been no adverse change in the status of any Disclosed Litigation, or its financial effect on the Borrower or any of the Significant Subsidiaries from that disclosed or contemplated in the SEC Reports that could be reasonably likely to have a Material Adverse Effect. (g) The operations and properties of the Borrower and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, except as disclosed or contemplated in the SEC Reports, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect. (h) No proceeds ERISA Event has occurred or is reasonably expected to occur with respect to any Plan. (i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status. (j) Neither the Borrower nor any Loan will ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan. (k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be used directly in reorganization or indirectly to be terminated, within the meaning of Title IV of ERISA. (l) Except as set forth in the financial statements referred to in subsection (e) above, the Borrower and its Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106. SIDLEY XXXXXX XXXXX & XXXX LLP 27 (m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). , and no proceeds of any Revolving Credit Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock; and after applying the proceeds of each Revolving Credit Advance hereunder, margin stock (hwithin the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) The constitutes less than twenty-five percent (25%) of the value of those assets of the Borrower and its Subsidiaries have filed (which are subject to any limitation on sale or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all pledge, or any other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effectrestriction hereunder. (in) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred is, or after the making of any liabilityRevolving Credit Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other than premiums payable in the ordinary course of businesstransactions contemplated hereby, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not will be, an "investment company", or a company “controlled” by an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company”, " (within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (iio) None At all times the Borrower is exempt from being required to seek approval to perform its obligations under the Loan Documents pursuant to Rule 2 of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, Rules and Regulations promulgated pursuant to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Public Utility Holding Company Act of 19771935, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Dte Energy Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, warrants as follows as of the date hereof and the Amendment Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as follows: (a) The Borrower Upon consummation of, and after giving effect to, the Merger Transactions to be consummated on the Merger Closing Date, each Loan Party and each of its Subsidiaries (i) is a corporation duly organized and organized, validly existing and in good standing under the laws of the State jurisdiction of New Jersey and its incorporation, (ii) is duly qualified and in good standing under the laws of New Jersey and as a foreign corporation in each of the respective states other jurisdiction in which it owns or leases property or in which the conduct of its principal operating facilities are located, except, with respect business requires it to this clause (ii) only, in states so qualify or be licensed except where the failure to so qualify or be so qualified or in good standing licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as currently proposed to be expected conducted, except where the failure to result in have such power or authority would not be reasonably likely to have a Material Adverse Effect. All of the outstanding Equity Interests in the Borrower have been validly issued, are fully paid and non-assessable and are owned by the Parent free and clear of all Liens, except those created under the Loan Documents. (b) The Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party as of consummation of, and after giving effect to, the Merger Transactions to be consummated on the Merger Closing Date, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party's Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those created under the Loan Documents. (c) Upon consummation of, and after giving effect to, the Merger Transactions to be consummated on the Merger Closing Date, the execution, delivery and performance by the Borrower each Loan Party of this Agreement each Loan Document to which it is or is to be a party, and the Notes (i) consummation of the Transactions, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene such Loan Party's charter or bylaws, (ii) do not contravene violate any law, rule, regulation (xincluding, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the Borrower’s charter breach of, or by-laws constitute a default under, any loan agreement, indenture, mortgage, deed of trust, or material contract, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (yiv) law except for the Liens created under the Loan Documents and the Second Lien Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any material contractual restriction binding of its Subsidiaries. Upon consummation of, and after giving effect to, the Merger Transactions to be consummated on the Borrower orMerger Closing Date, no Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could be reasonably likely to the knowledge of the Borrower, any other contractual restriction binding on the Borrowerhave a Material Adverse Effect. (cd) No Upon consummation of, and after giving effect to, the Merger Transactions to be consummated on the Merger Closing Date, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (including, without limitation, the FCC or any applicable PUC) or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party, or for the Borrower consummation of this Agreement the Transactions, (ii) the grant or affirmation by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof), or (iv) the exercise by any Agent or any Lender Party of its rights under the Loan Documents or the Notesremedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect except (A) as set forth in the Loan Documents or (B) for such authorizations, approvals, actions, notices and filings which would not have a Material Adverse Effect if not so made or obtained. All applicable waiting periods in connection with the Transactions have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transactions or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (de) This Agreement has been, and the Notes (each other Loan Document when delivered hereunder) hereunder will have been been, duly executed and delivered by each Loan Party thereto. This Agreement is, and constitute each other Loan Document when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower each Loan Party thereto, enforceable against the Borrower such Loan Party in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to the Borrower's knowledge, threatened before any court, governmental agency or arbitrator that (i) The consolidated balance sheets would, alone or when considered in conjunction with any other actions, suits, investigation, litigation or proceeding affecting any Loan Party, be reasonably likely to have a Material Adverse Effect other than the Disclosed Litigation or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of Transactions, and there has been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of or as a result of the Borrower Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) The (i) Consolidated balance sheet of the Parent and its Subsidiaries and the Consolidated balance sheet of BTI and its Subsidiaries as at September 30December 31, 20132002, and (ii) the related statements Consolidated statement of income and Consolidated statement of cash flows of the Borrower Parent and its Subsidiaries for the Fiscal Year then ended and the related Consolidated statement of income and Consolidated statement of cash flows of BTI and its Subsidiaries for the fiscal year ended December 31, 2002, (iii) the Consolidated balance sheet of the Parent and its Subsidiaries and the Consolidated balance sheet of BTI and its Subsidiaries as at June 30, 2003, and (iv) the related Consolidated statement of income and Consolidated statement of cash flows of the Parent and its Subsidiaries and the related Consolidated statement of income and Consolidated statement of cash flows of BTI and its Subsidiaries for the six months then ended, duly certified by the Chief Financial Officer of the Parent or the Chief Financial Officer of BTI, as the case may be, copies of which have been furnished to the Administrative Agenteach Lender Party, fairly present present, subject, in the consolidated financial condition case of the Borrower and its Consolidated Subsidiaries such balance sheet as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 2003, and the related unaudited consolidated such statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10ended, to year-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e)end audit adjustments, the consolidated Consolidated financial position condition of the Borrower Parent and its Consolidated Subsidiaries or BTI and its Subsidiaries, as of the case may be, as at such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or Consolidated results of operations of the Borrower Parent and its Subsidiaries or BTI and its Subsidiaries, taken as a wholethe case may be, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is period ended on such date, all in accordance with GAAP applied on a consistent basis, and since December 31, 2002 there has been no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse EffectChange. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Itc Deltacom Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey Delaware; each LC Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation. The Borrower and each of the its Subsidiaries possess all corporate powers and all other authorizations and licenses necessary to engage in their respective states in which its principal operating facilities are locatedbusinesses, except, with respect to this clause (ii) only, in states except where the failure to be so qualified or in good standing possess would not reasonably be expected to result in have a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower and each LC Subsidiary of this Agreement and the Notes (i) are within the Borrower’s 's and such LC Subsidiary's respective corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's or any LC Subsidiary's charter or by-laws or (yii) law or any material contractual restriction binding on or affecting the Borrower or, to the knowledge of the Borrower, or any other contractual restriction binding on the BorrowerLC Subsidiary or their respective properties. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower or each LC Subsidiary of this Agreement or the NotesAgreement. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute is the legal, valid and binding obligations obligation of the Borrower and each LC Subsidiary enforceable against the Borrower and each LC Subsidiary in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30January 28, 20131995, and the related Consolidated statements of income and cash flows retained earnings of the Borrower and its Consolidated Subsidiaries for the fiscal year Fiscal Year then ended, certified by Deloitte & Touche, and the Consolidated balance sheets of the Borrower and its Subsidiaries at April 29, 1995, and the related Consolidated statements of income and retained earnings of the Borrower and its Subsidiaries for the three months then ended, duly certified by a Responsible Officer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present (subject to year-end adjustment in the consolidated case of the April 29, 1995 financial statements) the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower , and its Consolidated Subsidiaries as of June 30since January 28, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20131995, there has been no material adverse change in such condition or operations which, considering the businesssurrounding circumstances, condition (financial will, or otherwise) or results is reasonably likely to, cause a breach of operations any of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedfinancial covenants contained in Section 7.03 hereof. (f) There is no pending (or, to the best of Borrower’s 's knowledge, threatened) threatened action or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that has a reasonable probability (itaking into account the exhaustion of all appeals and the assertion of all defenses) would have of having a material adverse effect on the business, condition (financial Material Adverse Effect or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) which purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteAgreement. (g) No proceeds The Borrower and its Subsidiaries are not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning Margin Stock, and no proceeds of Regulation U issued any Advance will be used by the Board Borrower or any of Governors its Subsidiaries to extend credit to others for the purpose of the Federal Reserve System)purchasing or carrying any Margin Stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an "investment company," or an "affiliated person" of, or a company “controlled” by "promoter" or "principal underwriter" for, an "investment company”, within the meaning of ," as such terms are defined in the Investment Company Act of 1940, as amended. (ki) No statementExcept as has been disclosed in writing to the Lenders, information, report, representation, or warranty made by neither the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or nor any of its Subsidiaries has any Plans. Neither the Borrower nor any ERISA Affiliate is a party or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoingto, or has any other applicable sanctions authority (collectivelyobligation to make payments, “Sanctions”to, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)any Multiemployer Plan. (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Gap Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Each of the Borrower (i) and each Significant Subsidiary is a corporation duly organized and incorporated, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states jurisdiction in which its principal operating facilities are located, except, with respect it is incorporated and is duly qualified to this clause (ii) only, do business in states where the failure to be so qualified or and is in good standing under the laws of each other jurisdiction where the nature of its business or the nature of property owned or used by it makes such qualification necessary (except where failure to so qualify would not reasonably be expected to result in have a Material Adverse Effectmaterial adverse affect on the financial condition, operations or properties of the Borrower and its Subsidiaries, taken as a whole). (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) any law or any material contractual restriction binding on or affecting the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borroweror its properties. (c) No authorization or approval or other action by, and no notice to or filing with, with any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or Agreement, other than the NotesSEC Order and the FPSC Order, each of which has been duly issued and is in full force and effect. (d) This Agreement and the Notes (when delivered hereunder) have has been duly executed and delivered by the Borrower and constitute is, and any promissory note when delivered pursuant to Section 2.01(b) will be, the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132000, and the related Consolidated statements of income and cash flows retained earnings of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, and the Consolidated balance sheets of the Borrower and its Subsidiaries as at June 30, 2001, and the related Consolidated statements of income and retained earnings of the Borrower and its Subsidiaries, copies of each of which have been furnished to the Administrative Agenteach Lender, fairly present (subject, in the consolidated case of such financial statements dated June 30, 2001, to year end adjustments) the financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132000, there has been no material adverse change in the businessfinancial condition, condition (financial operations or otherwise) or results of operations properties of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There Except as described in the reports and registration statements that the Borrower and Parent have filed with the Securities and Exchange Commission prior to the date of this Agreement, there is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against affecting the Borrower or any of its Subsidiaries Subsidiary before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on may materially adversely affect the businessfinancial condition, condition (financial operations or otherwise) or results of operations properties of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan Advance will be used directly or indirectly to acquire any security in any transaction that is subject to Sections 13 and 14 of the Exchange Act. (h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing buying or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to buy or carry any margin stock or to extend credit to others for the purpose of buying or carrying any margin stock. (i) Following application of the proceeds of each Advance, not more than 5% of the value of the assets (either of the Borrower only or of the Borrower and the Subsidiaries on a Consolidated basis) subject to the provisions of Section 5.02(a) or 5.02(e) will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (hj) The Borrower and its Subsidiaries have filed (No Termination Event has occurred or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) is reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, occur with respect to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (jk) The Borrower is not an "investment company”, " or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. (kl) No statementThe Borrower is in substantial compliance with all applicable laws, informationrules, reportregulations and orders of any governmental authority, representationthe noncompliance with which would materially and adversely affect the business or condition of the Borrower, such compliance to include, without limitation, substantial compliance with ERISA, Environmental Laws and paying before the same become delinquent all material taxes, assessments and governmental charges imposed upon it or warranty made upon its property, except to the extent compliance with any of the foregoing is then being contested in good faith by appropriate legal proceedings. (m) All written information furnished by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of and the Borrower Lenders in connection with this Agreement or contained (the "Disclosed Information") was (and all information furnished in any filing made the future by the Borrower with to the Securities Agent and Exchange Commission (taken as a whole with the Lenders will be) complete and correct in all other informationrespects material to the creditworthiness of the Borrower when delivered. As of the date hereof, including amendments and supplements then filed with the Securities and Exchange Commission) contains Disclosed Information does not contain any untrue statement of a material fact or omits any omit to state a material fact required to be stated therein or necessary to make the statements therein, contained therein not misleading in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Florida Progress Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrantswarrants as follows; provided, as however, that the representation and warranty contained in subsection (e)(ii), below, shall not first be made or deemed made, or first be represented to be true or correct for purposes of Article III of this Agreement, until the consummation of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as followsMerger: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement Agreement, the Notes or the Notesany other Loan Document to which it is a party. (d) This Agreement has been, and each of the Notes (and each of the other Loan Documents to which it is a party when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes and each of the other Loan Documents to which it is a party when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ law affecting creditors rights generally or by equitable principles relating to enforceabilitygenerally. (i) The consolidated balance sheets Audited Statements of the Borrower Parent and its Consolidated Subsidiaries as at September 30, 2013, DECO and the related statements of income and cash flows Unaudited Statements of the Borrower Parent and its Consolidated Subsidiaries for the fiscal year then endedDECO, copies of each of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject in the consolidated case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition condition, results of operations and cash flows of the Borrower relevant Persons and its Consolidated Subsidiaries entities, as at such date the dates and for the periods therein indicated, all in accordance with generally accepted accounting principles consistently applied and (ii) The Audited Statements of MCN and MichCon and the consolidated Unaudited Statements of MCN and MichCon, copies of each of which have been furnished to each Lender, fairly present, subject in the case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition, results of the operations and cash flows of the Borrower relevant Persons and its Consolidated Subsidiaries entities, as at the dates and for the fiscal year ended on such dateperiods therein indicated, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20131999, there has been no material adverse change Material Adverse Change, except as shall have been disclosed or contemplated in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedSEC Reports. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against the Borrower proceeding, including, without limitation, any Environmental Action, affecting any Loan Party or any of its the Significant Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement Agreement, any Note or any Noteother Loan Document or the consummation of the transactions contemplated hereby and there has been no adverse change in the status of any Disclosed Litigation, or its financial effect on any Loan Party or any of the Significant Subsidiaries from that disclosed or contemplated in the SEC Reports. (g) No proceeds The operations and properties of the Loan Parties and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, except as disclosed or contemplated in the SEC Reports, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the any Loan will Party or any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be used directly subject to any restrictions on ownership, occupancy, use or indirectly transferability under any Environmental Law that could have a Material Adverse Effect. (h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan. (i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status. (j) Neither the Parent nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan. (k) Neither the Parent nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA. (l) Except as set forth in the financial statements referred to in subsection e(i) above and, from and after the consummation of the Merger, subsection e(ii), above, the Parent and its Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106. (m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (hn) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred is, or after the making of any liabilityAdvance or the application of the proceeds or repayment thereof, or the consummation of any of the other than premiums payable in the ordinary course of businesstransactions contemplated hereby, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not will be, an "investment company", or a company “controlled” by an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company”, " (within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (iio) None At all times prior to the Parent Assumption Date, the Borrower is a "subsidiary company" of the Borrower or any of its Subsidiaries or their respective directorsParent, officers or employees or, to which is a "holding company" (within the knowledge meaning of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Public Utility Holding Company Act of 19771935, as amended), or any other applicable anti-bribery or anti-corruption lawsand, rulesat all times before and after the Parent Assumption Date, regulations or orders (collectivelythe Parent is exempt from being required to seek approval to perform its obligations under the Loan Documents pursuant to Rule 2 of the Rules and Regulations promulgated pursuant to the Public Utility Holding Company Act of 1935, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)as amended. (iiip) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with At all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory times prior to the extent that such country Parent Assumption Date, the Support Agreement (as it may be amended, supplemented, terminated or territory otherwise modified in accordance with its terms) is the subject of any Sanctions, or in any other manner that reasonably would be expected to result full force and effect and enforceable in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawsaccordance with its terms.

Appears in 1 contract

Sources: Credit Agreement (Detroit Edison Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as follows: (a) The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement Second Amendment and the Notes (i) are within amendments to the Borrower’s corporate powers, Security Documents to which the Borrower is a party have been duly authorized by all necessary corporate action, action and (ii) do not contravene and will not (xa) the Borrower’s charter require any consent or approval of its shareholders; (b) violate any provisions of its certificate of incorporation or by-laws laws; (c) violate any provision of or require any filing, registration, consent or approval under, any law, rule, regulation (including without limitation, Regulation U and X), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to and binding upon the Borrower or any Subsidiary; (d) result in a breach of or constitute a default or require any consent under any indenture, mortgage or loan or credit agreement or any other material agreement, lease or instrument to which the Borrower or any Subsidiary is a party or by which it or its Properties may be bound; or (ye) law result in, or require, the creation or imposition of any material contractual restriction binding on the Borrower or, Lien upon or with respect to the knowledge any of the Borrower, any other contractual restriction binding on Properties now owned or hereafter acquired by the Borrower. (b) The representations and warranties contained in Article 4 of the Existing Credit Agreement, as amended by this Second Amendment, are correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date. (c) No authorization Event of Default or approval Default has occurred and is continuing or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for would result from the due execution, delivery and performance by the Borrower signing of this Agreement Second Amendment or the Notestransactions contemplated hereby. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except Except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth disclosed in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013Waiver Request, there has been no material adverse change in the businessfinancial condition, condition (financial operations, Properties, business or otherwise) or results of operations business prospects of the Borrower and its Subsidiaries, taken as a wholeif any, as shown on since the consolidated balance sheet as date of such date and the related consolidated statement of net income for last financial statements furnished to the fiscal year then endedAgent. (fe) There is no No actions, suits or proceedings or investigations are pending (or, to as far as the Borrower’s knowledgeBorrower can reasonably foresee, threatened) action threatened against or proceeding against affecting the Borrower or any Subsidiary, or any Property of its Subsidiaries any of them before any court, governmental agency or arbitrator, in which there is likely if determined adversely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of Subsidiary would in any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually one case or in the aggregate) reasonably be expected to aggregate have a Material Materially Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (kf) No statement, information, report, representation, exhibit or warranty made by the Borrower report furnished in this Agreement or furnished to the Administrative Agent or any Lender writing by or on behalf of the Borrower or any officer or director of the Borrower to the Agent in connection with the negotiation of, or pursuant to the terms of this Agreement Second Amendment, contained when made any material misstatement of fact or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of omitted to state a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, contained therein not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Core Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of warrants to the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, Lender as follows: (a) The the Borrower (i) is exists as a corporation duly organized and validly existing under the laws of the State Province of New Jersey Alberta, and (ii) has not discontinued or been dissolved under any applicable laws and is duly qualified and in good standing with respect to the filing of annual reports and all other such requirements pursuant to the laws thereof; (b) the Guarantors exist as corporations or other entities under the laws of New Jersey the jurisdiction of their incorporation or organization, and each of the respective states have not discontinued or been dissolved under any applicable laws and are in which its principal operating facilities are located, except, good standing with respect to this clause the filing of annual reports and all other such requirements pursuant to the laws thereof; (c) the Borrower and each Guarantor has the power and authority to (i) carry on its businesses as now being conducted and is licensed or registered or otherwise qualified in all jurisdictions wherein the nature of its assets or the business transacted by it makes such licensing, registration or qualification necessary, (ii) onlyacquire, own, hold, lease and mortgage or grant security in states where the failure to be so qualified its assets including real property and personal property and (iii) enter into and perform its obligations under this Agreement and all other documents or in good standing would not reasonably be expected to result in a Material Adverse Effect.instruments delivered hereunder; (bd) The executionthis Agreement and all ancillary instruments or documents issued, delivery executed and performance delivered hereunder by the Borrower of this Agreement and or the Notes (i) are within the Borrower’s corporate powersGuarantors, as applicable, have been duly authorized by all necessary corporate actionaction of the Borrower and the Guarantors, as applicable, and (ii) do not contravene (x) the Borrower’s charter each constitutes or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and will constitute the a legal, valid and binding obligations obligation of the Borrower or the Guarantors, as applicable, enforceable against the Borrower or the Guarantors, as applicable, in accordance with their respective terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or and other similar laws relating affecting the rights and remedies of creditors and to the general principles of equity; (e) neither the Borrower nor any Subsidiary is in breach of or limiting creditors’ rights generally in default under any obligation in respect of borrowed money, and the execution and delivery of this Agreement and all ancillary instruments or by equitable principles relating documents issued and delivered hereunder or thereunder, and the performance of the terms hereof and thereof will not be, or result in, a violation or breach of, or default under, the Borrower’s or any Subsidiary’s constating documents, any law, judgment, agreement or instrument to enforceability.which they are a party or may be bound; (f) execution, delivery and performance of this Agreement and all other documents and instruments contemplated hereby, including the documents to be entered into pursuant to paragraph 6 of this Agreement, will not constitute a breach or default under or in respect of any agreement to which the Borrower or the Guarantors is bound, and no consent, filing, authorization, approval or other action (including the granting of a lien or security interest to any other person or entity) is prudent or necessary under the terms of any such agreement to proceed with the transactions contemplated herein; (g) the documents and instruments to be executed and delivered pursuant to paragraph 6 will create a valid first perfected, lien and security interest on the Collateral subject to no other lien or encumbrance; (h) no litigation or administrative proceedings before any court or governmental authority are presently ongoing, or have been threatened in writing, or to the best of the Borrower’s knowledge are pending, against the Borrower, any Subsidiary or any of their respective properties or assets or affecting any of their respective properties or assets which could have a material adverse effect on their respective business, properties or assets; (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries each Subsidiary, as at September 30the case may be, 2013is the legal and beneficial owner of the interests in the properties, business and assets referred to in the information circulars, prospectuses, annual information forms, offering memoranda, financial statements, material change reports and news releases filed with the Exchange and the securities regulatory authority or commission in each of the jurisdictions in which the Borrower is a reporting issuer on or during the twelve (12) months preceding the date hereof, and any other disclosure materials provided to the related statements of income Lender and cash flows of its advisers in conjunction with this transaction (collectively, the “Disclosure Record”), as being owned by the Borrower or such Subsidiary and has a valid right to acquire all interests in properties, business and assets referred to in the Disclosure Record as being subject to options or other rights to acquire the same, and any and all agreements pursuant to which the Borrower and its Consolidated Subsidiaries for each Subsidiary, as the fiscal year then endedcase may be, copies holds or will hold any such interests, options or rights in property, business or assets are in good standing in all material respects under the applicable statutes and regulations of the jurisdictions in which have been furnished they are situated; (j) except as disclosed to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all Lender in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished writing prior to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) date of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013Agreement, there has been no material adverse change (actual, contemplated or threatened) in the businessproperty, assets, business or operations of the Borrower or any Subsidiary within the past twelve (12) months, except as disclosed in the Disclosure Record and there has been no such material adverse change since December 31, 2007; (k) the Disclosure Record is complete and accurate in all material respects and omits no facts, the omission of which makes the Disclosure Record, or any particulars therein, misleading, misrepresentative or incorrect in any material respect; (l) the Borrower and to the best of the Borrower’s knowledge each Subsidiary, has conducted and is conducting its businesses in material compliance with all applicable laws, bylaws, rules and regulations of each jurisdiction in which its businesses are now carried on and hold all licenses, registrations, permits, consents or qualifications (whether governmental, regulatory or otherwise) required in order to enable its businesses to be carried on as now conducted or as proposed to be conducted, and all such licenses, registrations, permits, consents and qualifications are valid and subsisting and in good standing and neither the Borrower nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such licenses, registrations, permits, consents or qualifications which, if the subject of an unfavourable decision, ruling or finding, would materially adversely affect the condition of such businesses, operations, condition (financial or otherwise) or results of operations income of the Borrower and its Subsidiaries, taken as a wholeor any such Subsidiary, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended.case may be; (fm) There is no pending order ceasing or suspending trading in securities of the Borrower or prohibiting the sale or trading of securities by the Borrower has been issued and no proceedings for this purpose have been instituted, are pending, contemplated or threatened; (n) neither the Canada Revenue Agency nor any other taxation authority has asserted or, to the best of the Borrower’s knowledge, threatened) action has threatened to assert any assessment, claim or proceeding against liability for taxes due or to become due in connection with any review or examination of the tax returns of the Borrower or any of its Subsidiaries before Subsidiary filed for any court, governmental agency or arbitrator, in year which there is likely to be an adverse decision that (i) would have a material adverse effect on the assets, properties, business, results of operations, prospects or condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note.Subsidiary; (go) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred Subsidiary is a party to any liability, material contract other than premiums payable as disclosed in the ordinary course Disclosure Record; (p) except for the Guarantors, TransAtlantic Petroleum (USA), Corp., TransAtlantic Maroc, Ltd., Viking Geophysical Services, Ltd., TransAtlantic Turkey, Ltd., TransAtlantic Petroleum Cyprus Limited, and TransAtlantic Worldwide Romania SRL, the Borrower has (i) no direct or indirect Subsidiaries, and (ii) no investments in any corporation, limited liability company or other entity except as disclosed in the Disclosure Record; (q) except as disclosed to the Lender in writing prior to the date of this Agreement, the Borrower and each Subsidiary owns its business, to operations and assets, as more particularly described in the PBGC established under ERISA in connection with any Plan Disclosure Record, and holds good title thereto, free and clear of all liens, claims or Multiemployer Plan.encumbrances whatsoever; (jr) The Borrower is not an “investment company”, all factual information previously or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or contemporaneously furnished to the Administrative Agent or any Lender by or on behalf of the Borrower for purposes of or in connection with this Agreement or contained any transaction contemplated hereby, is true and accurate in any filing made every material respect and such information is not incomplete by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement omission of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, such information not misleading.; (ls) The the Borrower and its Subsidiaries are, each Subsidiary are generally able to pay their debts as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent.they come due; (mt) Each the registered office of the Borrower and its Subsidiaries is in compliance with all applicable statuteslocated at Xxxxx 0000, regulations and orders of000 – 0xx Xxx. X.X., and all applicable restrictions imposed byXxxxxxx, all Governmental AuthoritiesXxxxxxx, in respect X0X 0X0; the chief executive office, principal place of the conduct of its business and place where the ownership Borrower keeps its books and records is located at Xxxxx 0000, 000 – 0xx Xxx. X.X., Xxxxxxx, Xxxxxxx X0X 0X0 and the Borrower has conducted substantially all the negotiations regarding the subject matter of its property this Agreement from offices located at Xxxxx 0000, 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx 00000; and (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its u) the chief executive office, principal place of business and place where the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of Guarantor keeps its Subsidiaries)books and records is located at Suite 1755, except such non-compliance that0000 X. Xxxxxxx Xxxxxxxxxx, individually or in the aggregateXxxxxx, would not reasonably be expected to result in a Material Adverse EffectXxxxx 00000. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Transatlantic Petroleum Corp.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized representations and validly existing under the laws warranties contained in Section 3 of the State of New Jersey Credit Agreements, are true and (ii) is duly qualified correct on and in good standing under the laws of New Jersey and each as of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where date hereof as though made on and as of the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectdate hereof. (b) The execution, delivery and performance by the Borrower of this Agreement Amendment No. 11 and Waiver, and the Notes (i) Credit Agreements, as amended hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws laws, or (yii) any law or any material contractual restriction binding on the Borrower or, to the knowledge of or affecting the Borrower, or result in, or require, the creation of any lien, security interest or other contractual restriction binding on the Borrowercharge or encumbrance upon or with respect to any of its properties. (c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement Amendment No. 11 and Waiver or the NotesCredit Agreements, as amended hereby. (d) This Agreement Amendment No. 11 and Waiver and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the Credit Agreements, as amended hereby, constitute, legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject, however, to the effect on such enforceability of (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting creditors' rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets general principles of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth equity (regardless whether such enforceability is considered in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, a proceeding in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustmentsequity or at law). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (fe) There is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against affecting the Borrower or any of its Subsidiaries subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on may materially adversely affect the businesscondition, condition (financial or otherwise) , or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any NoteBorrower. (gf) No proceeds event has occurred and is continuing which constitutes an Event of any Loan will be used directly Default or indirectly would constitute an Event of Default but for the purpose of purchasing requirement that notice be given or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)time elapse or both. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Amendment No. 11 and Waiver (United Foods Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, warrants to the Lenders and the Agent that each of the following matters is true and correct as of the Effective Date (other than with respect to paragraph (l)) execution date of this Agreement and as the Drawdown Date. If it is found out that any of the Closing Daterepresentations and warranties is not true at any later date, as followsthen the Borrower will immediately notify the Lenders and the Agent of such effect in writing and bear any and all Damages, Etc. incurred by the Lenders or the Agent arising therefrom: (a) The Borrower (i) the Borrower is a corporation stock company (kabushiki-kaisha) duly organized incorporated and validly existing under the laws of the State of New Jersey and Japan; (ii) is duly qualified and in good standing the Borrower falls under the laws of New Jersey and each none of the respective states provisions stipulated from (a) to (i) in which its principal operating facilities are located, except, with respect Schedule 6 (i) and has none of relationships stipulated from (a) to this clause (e) in Schedule 6 (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect). (biii) The executionthe Borrower has all necessary and complete legal power and right to execute and perform the Relevant Agreements, delivery and the execution and performance by of the Borrower of this Agreement Relevant Agreements, and the Notes (i) transactions hereunder, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge purposes of the Borrower, any and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the Articles of Incorporation and other contractual restriction binding on internal company rules of the Borrower.; (iv) the execution and performance of the Relevant Agreements, and the transactions hereunder, do not violate (a) any Laws and Ordinances which bind the Borrower, (b) the Articles of Incorporation and other internal company rules of the Borrower, and (c) No authorization any third-party contract to which the Borrower is a party or approval which binds the Borrower; (v) the person who signed or attached his/her name and seal to the Relevant Agreements on behalf of the Borrower is authorized to sign or attach his/her name and seal to the Relevant Agreements as the representative of the Borrower by all procedures necessary pursuant to the Laws and Ordinances, the Articles of Incorporation or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for internal company rules of the due execution, delivery and performance by the Borrower of this Agreement or the Notes.Borrower; (dvi) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and Relevant Agreements constitute the legal, valid and binding obligations of the Borrower Borrower, and is enforceable against the Borrower it in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.;

Appears in 1 contract

Sources: Syndicated Loan Agreement (Amkor Technology, Inc.)

Representations and Warranties of the Borrower. The In order to induce Lender to advance funds against the Promissory Note(s), Borrower represents makes the following representations and warrantswarranties to Lender, as which representations and warranties shall be unaffected by any investigation heretofore or hereafter made by Lender and shall survive the closing of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as followstransactions contemplated hereby: (a) The a. Borrower (i) is a corporation duly organized has all requisite power and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect authority to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of enter into this Agreement and the Notes (i) other Loan Documents, including, without limitation, the Promissory Notes, and to carry out the transactions contemplated hereby. b. Borrower warrants and represents that it is not now insolvent, bankrupt, or contemplating bankruptcy; or, that there are within no claims filed or threatened against Borrower, whether judged with or without merit by the Borrower’s corporate powers, have been duly authorized or aware of impediments to the sale or transfer of the Stock. c. The execution and delivery of this Agreement, the Promissory Notes and the other Loan Documents and instruments to be executed and delivered by all necessary corporate actionthe Borrower are not subject to any authorization not herein contemplated, subject to recall, restriction on voting, use, or other limitations. d. This Agreement constitutes, and (ii) do not contravene (x) when executed and delivered, the Borrower’s charter or by-laws or (y) law or any material contractual restriction Promissory Notes and other Loan Documents, will constitute valid binding on the Borrower or, to the knowledge agreements of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except such as may be limited by bankruptcy, insolvency, reorganization, moratorium reorganization or similar other laws relating to or limiting affecting creditors' rights generally or by equitable principles relating to enforceabilitygenerally. (i) The consolidated balance sheets e. Neither the execution and delivery of this Agreement, the Promissory Notes, or the other Loan Documents and instruments to be executed and delivered by Borrower pursuant hereto, nor the consummation by Borrower of the transactions contemplated hereby, will require any authorization, consent, approval, exemption or other action by, or notice to, any governmental entity except as specifically provided herein. f. Borrower has no material tax deficiencies, federal, state, foreign, county, local and other, which would or could affect the solvency, financial status of, or otherwise compromise Borrower in its Consolidated Subsidiaries as at September 30ability to transfer the Stock. g. To best of its knowledge, 2013, and the related statements of income and cash flows of the information supplied by Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower Lender (verbally and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (iiwriting) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been contained no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any or shall omit a material fact required to be stated therein or necessary to fact, which would make the such statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower . All statements and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged information contained in any activity certificate, instrument, schedule or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)document delivered by Borrower shall be deemed representations and warranties made by Borrower. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Collateral Loan Agreement (Sundog Technologies Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement Amendment, and the Notes (i) Credit Agreement, as amended hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws laws, or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of or affecting the Borrower, or result in, or require, the creation of any lien, security interest or other contractual restriction binding on the Borrowercharge or encumbrance upon or with respect to any of its properties. (c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement Amendment or the NotesCredit Agreement, as amended hereby. (d) This Agreement Amendment and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the Credit Agreement, as amended hereby, constitute, legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject, however, to the effect on such enforceability of (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting creditors' rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets general principles of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth equity (regardless whether such enforceability is considered in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, a proceeding in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustmentsequity or at law). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (fe) There is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against affecting the Borrower or any of its Subsidiaries subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on may materially adversely affect the businesscondition, condition (financial or otherwise) , or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any NoteBorrower. (gf) No proceeds event has occurred and is continuing which constitutes an Event of any Loan will be used directly Default or indirectly would constitute an Event of Default but for the purpose of purchasing requirement that notice be given or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)time elapse or both. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Revolving Credit Agreement (United Foods Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the state of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) Notes, if any, to be delivered by it, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws (or other equivalent organizational documents), (ii) applicable law or (yiii) law any contract or any material contractual restriction instrument binding on the Borrower or, or any of its properties or assets that is material to the knowledge of the BorrowerBorrower and its Subsidiaries, any other contractual restriction binding on the Borrowertaken as a whole. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes, if any, to be delivered by it. (d) This Agreement has been, and each of the Notes (Notes, if any, to be delivered by the Borrower when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. Assuming that this Agreement has been duly executed by the Agent and constitute each of the Initial Lenders, this Agreement is, and each of the Notes of the Borrower when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their its respective terms, except as may be limited by subject to (i) bankruptcy, insolvency, reorganization, moratorium or and other similar laws relating to of general application affecting the rights and remedies of creditors and (ii) general principles of equity, regardless of whether applied in proceedings in equity or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30May 31, 20132004, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies accompanied by the opinion(s) of which have been furnished one or more firms of independent certified public accountants of recognized national standing, as filed with the Securities and Exchange Commission on Form 10-K with respect to its year ended May 31, 2004, and the Administrative Agent, fairly present the consolidated financial condition Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at such date November 30, 2004, and the consolidated results related Consolidated statements of the operations income and cash flows of the Borrower and its Consolidated Subsidiaries for the six months then ended, as filed with the Securities and Exchange Commission on Form 10-Q with respect to its fiscal year quarter ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June November 30, 2014 2004, fairly present, subject, in the case of said balance sheet at November 30, 2004, and the related unaudited consolidated said statements of income and cash flows for the six months then ended ended, to absence of footnotes and set forth in the Borrower’s Report on Form 10to year-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e)end audit adjustments, the consolidated Consolidated financial position condition of the Borrower and its Consolidated Subsidiaries as of at such date dates and their consolidated the Consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income Subsidiaries for the fiscal year then endedperiods ended on such dates, all in accordance with GAAP consistently applied. (f) There is no pending or (or, to the knowledge of the Borrower’s knowledge) threatened action, threatened) action investigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, arbitrator that is initiated by any Person other than a Lender in which there is likely to be an adverse decision that its capacity as a Lender (i) would that is reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) that purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) No proceeds of Since May 31, 2004, there has not occurred any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)Material Adverse Effect which is continuing. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions None of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings Borrower or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liabilityis an Investment Company, other than premiums payable as such term is defined in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (ki) No statementpart of the proceeds of any Advances will be used in any manner that would result in a violation of Regulation U or X, information, report, representation, or warranty made issued by the Board of Governors of the Federal Reserve System. (j) The proceeds of the Advances shall be used by the Borrower in this Agreement order to “back stop” commercial paper, for working capital purposes and for other general corporate purposes. (k) No report, financial statement or other written information furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement to the Agent or contained in any filing made Lender pursuant to subsection 5.01(i) (as modified or supplemented by any other information provided to the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange CommissionAgent or any Lender) contains or will contain any untrue statement material misstatement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were were, are or will be made, not misleading, except to the extent that the facts (whether misstated or omitted) do not result in a Material Adverse Effect; provided that with respect to any projected financial information, the Borrower represents only that such information has been (or will be) prepared in good faith based on assumptions believed to be reasonable at the time. (l) The Borrower and its Subsidiaries areis in compliance with all material provisions of ERISA, as of the Closing Date, after giving effect except to the Acquisition and extent that all failures to be in compliance could not, in the making of the Loans and application of the proceeds thereofaggregate, on reasonably be expected to have a consolidated basis, SolventMaterial Adverse Effect. (m) Each The claims of the Agent and the Lenders against the Borrower under this Agreement rank at least pari passu with the claims of all its unsecured creditors, save those whose claims are preferred solely by the laws of general application having effect in relation to bankruptcy, insolvency, liquidation or other similar events. (n) The Borrower and its Subsidiaries have filed all United States federal tax returns and all other tax returns that are material to the Borrower and its Subsidiaries is in compliance with Subsidiaries, taken as a whole, which are required to be filed and have paid all applicable statutes, regulations and orders of, United States federal taxes and all applicable restrictions imposed byother taxes that are material to the Borrower and its Subsidiaries, all Governmental Authoritiestaken as a whole, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect each case, that are due pursuant to said returns or pursuant to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of material assessment received by the Borrower or any of its Subsidiaries), except in respect of such non-compliance thattaxes, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977if any, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)are being contested in good faith and by proper proceedings and to which appropriate reserves are being maintained. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: 364 Day Revolving Credit Agreement (Oracle Corp /De/)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body or any other third party is required for as a condition to the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws relating to or limiting creditors’ affecting the enforcement of creditors rights generally or by equitable principles relating to enforceabilityprinciples. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 29, 20132012, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies accompanied by an opinion of which have been furnished to Deloitte & Touche LLP, independent public accountants, and the Administrative AgentConsolidated balance sheet of the Borrower and its Subsidiaries as at June 29, 2013, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the six months then ended, duly certified by the chief financial officer of the Borrower, fairly present in all material respects, subject, in the consolidated case of said balance sheet as at June 29, 2013, and said statements of income and cash flows for the six months then ended, to the absence of footnotes and to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 29, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132012, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending or threatened (orin writing) action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding proceeding, including, without limitation, any Environmental Action, against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby, and there has been no materially adverse change in the status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)., and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of Regulation U. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any Subsidiary of its Subsidiaries or any of their respective directorsthe Borrower, officers ornor, to the knowledge of the Borrower, employeesany director, agentsofficer, advisors agent, employee or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None Affiliate of the Borrower or any of its Subsidiaries that, in each such case, is acting or their respective directorsdirectly benefitting in any capacity in connection with the Advances, officers (i) is currently the subject of any Sanctions or employees (ii) is operating, organized or residing in any Designated Jurisdiction. Neither the Borrower nor any Subsidiary of the Borrower will, directly or, to its knowledge, indirectly, use or lend, contribute, provide or otherwise make available the knowledge proceeds of the Borrowerany Advance to any Subsidiary, agents, advisors joint venture partner or Affiliates acting for other individual or on behalf of the Borrower or its Subsidiaries has engaged in entity (a) to fund any activity or conduct which would constitute a material violation business in, of (x) or with, any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, Designated Jurisdiction or to fund any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities activity or business of or with any Person that at such time is the subject of any Sanctionsoperating, with organized or residing in any country Designated Jurisdiction or territory to the extent that such country or territory who is the subject of any Sanctions, or (b) in a manner that will (i) result in any other manner that reasonably would be expected to violation by any Lender, Lead Arranger or the Agent of Sanctions or (ii) result in any violation by the Borrower or any Lender being Subsidiary of the Borrower of Sanctions, to the extent such violation in breach of any Sanctions Laws, this clause (yii) for any payments is reasonably expected to any governmental official or employee, political party, official of have a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering LawsMaterial Adverse Effect.

Appears in 1 contract

Sources: Five Year Credit Agreement (SNAP-ON Inc)

Representations and Warranties of the Borrower. The Borrower hereby represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized has the power and validly existing authority and legal right to execute and deliver this Amendment and to perform its obligations hereunder and under the laws of the State of New Jersey Credit Agreement (as modified hereby). The execution and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement Amendment and the Notes performance of its obligations hereunder and under the Credit Agreement (ias modified hereby) are within the Borrower’s corporate powers, have has been duly authorized by all necessary proper corporate actionproceedings, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement Amendment and the Notes Credit Agreement (when delivered hereunderas modified hereby) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws relating to or limiting affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceabilitygenerally. (ib) The consolidated balance sheets Neither the execution and delivery by the Borrower of this Amendment, nor the consummation of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth transactions contemplated herein or in the Borrower’s Report on Form 10-Q for the quarter ended June 30Credit Agreement (as modified hereby), 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent nor compliance with the financial statements referred to in clause provisions hereof or thereof will violate (i) of this paragraph (e)any law, the consolidated financial position of rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports the Borrower’s articles or certificate of incorporation or by-laws, or (iii) the provisions of any indenture, instrument or agreement to affect which the Borrower 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 pursuant to the terms of any such indenture, instrument or agreement. (c) 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, is required to be obtained by the Borrower in connection with the execution and delivery of this Amendment or the legality, validity, binding effect or enforceability of this the Credit Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve Systemas modified hereby). (hd) The Borrower and its Subsidiaries have filed (or have obtained extensions As of the time by which they are required to file) all United States Federal income tax returns date hereof and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making terms of the Loans and application of the proceeds thereofthis Amendment, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower there exists no Default or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, Unmatured Default and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None the representations and warranties contained in Article V of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of Credit Agreement (xas modified hereby) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower are true and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory correct except to the extent that any such country representation or territory warranty is the subject of any Sanctions, or in any other manner that reasonably would be expected stated to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments relate solely to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacityearlier date, in order to obtain, retain which case such representation or direct business or obtain any improper advantage, in violation warranty shall have been true and correct on and as of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawssuch earlier date.

Appears in 1 contract

Sources: Credit Agreement (Actuant Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectTennessee. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) other Loan Documents to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) any law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notesother Loan Documents to be delivered by it, except for such authorizations and approvals which have been obtained and notices and filings which have been made. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting the enforcement of creditors’ rights generally or and by general equitable principles relating to enforceabilityprinciples. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30February 1, 2013, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants, copies of which have been furnished to the Administrative Agent, fairly present the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) . Since September 30February 1, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the business, condition (financial or otherwise“Disclosed Litigation”) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Noteother Loan Document or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged principally, or as one of any Loan will be used directly or indirectly its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T, U or X issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock in violation of said Regulations T, U or X or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of said Regulations T, U or X. Following application of the proceeds of each Advance, not more than 25 percent of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated basis) that are subject to a restriction on sale, pledge, or disposal under this Agreement will be represented by margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended. (i) Neither the Information Memorandum nor any other written information, exhibit or have obtained extensions report furnished by or on behalf of the time by which they are required Borrower to filethe Agent or any Lender in connection with the negotiation and syndication of this Agreement or delivered pursuant to the terms of this Agreement (other than information of a general economic or industry nature or financial estimates, forecasts and other forward-looking information and after giving effect to all supplements and updates thereto) all United States Federal income tax returns and all other contains, when taken as a whole, any untrue statement of a material tax returns required fact or omitted to be filed by them and have paid all taxes shown due on the returns so filed as well as all other state a material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which fact necessary to make the statements made therein not materially misleading in light of the circumstances under which such statements are made. (i) Except as would not (reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect: Each Plan is in compliance with ERISA, the Code and any applicable Requirement of Law; no Reportable Event has occurred; no Plan is reasonably likely to be insolvent or in reorganization and no written notice of any such insolvency or reorganization has been given to the Borrower; each Plan that is subject to Title IV of ERISA has satisfied the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, and there has been no determination that any such Plan is, or is expected to be, in “at risk” status (within the meaning of Section 303 of ERISA; none of the Borrower has incurred (or is reasonably likely to incur) any liability to or on account of a Plan pursuant to Section 406, 409, 502(c), (i) or (l), 4062, 4063, 4064, 4069, 4201, 4204 or 4071 of ERISA or has been notified in writing that it will incur any liability under any of the foregoing Sections with respect to any Plan; no proceedings have been instituted (or are reasonably likely to be instituted) to terminate or to reorganize any Plan or to appoint a trustee to administer any Plan, and no written notice of any such proceedings has been given to the Borrower or any ERISA Affiliate; and no lien imposed under Section 401(a)(29) or 430(k) of the Code or pursuant to ERISA on the assets of the Borrower exists (or is reasonably likely to exist) nor has the Borrower been notified in writing that such a lien will be imposed on the assets of the Borrower on account of any Plan, except to the extent that a breach of any of the representations, warranties or agreements in this Section 4.01(j) would not result, individually or in the aggregate, in an amount of liability that would be reasonably likely to have a Material Adverse Effect. No Plan (other than a Multiemployer Plan) has an Unfunded Current Liability that would, individually or when taken together with any other liabilities referenced in this Section 4.01(j), be reasonably likely to have a Material Adverse Effect. Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Mulitemployer Plan that such Multiemployer Plan is insolvent (within the meaning of Section 4245 of ERISA), or has been determined to be in “endangered or critical” status with the meaning of Section 432 of the Code or Section 305 of ERISA and no such Multiemployer Plan is reasonably expected to be insolvent or in “endangered or critical” status. With respect to Plans that are Multiemployer Plans, the representations and warranties in this Section 4.01(j), other than any made with respect to (i) liability under Section 4203 or 4205 of ERISA or (ii) liability for termination or reorganization of such Plans under ERISA, are made to be best knowledge of the Borrower. Neither the Borrower nor any ERISA Affiliate has incurred nor reasonably expects to incur any liability under Title IV of ERISA with respect to any Plan maintained by an ERISA Affiliate, including the imposition of any Lien in favor of the PBGC. (ii) All Foreign Plans are in compliance with, and have been established, administered and operated in accordance with, the terms of such Foreign Plans and applicable law, except for any failure to so comply, establish, administer or operate the Foreign Plans as would not reasonably be expected to have a Material Adverse Effect. All contributions or other payments which are due with respect to each Foreign Plan have been made in full and there are no funding deficiencies thereunder, except to the extent any such events would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (ik) Each PlanExcept where the failure of which would not be reasonably expected to have a Material Adverse Effect, and, to the knowledge (a) each of the BorrowerBorrower and the Subsidiaries has filed all federal income tax returns and all other tax returns, each Multiemployer Plandomestic and foreign, is in compliance in required to be filed by it and has paid all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liabilitytaxes payable by it that have become due, other than premiums payable those (i) not yet delinquent or (ii) contested in good faith as to which adequate reserves have been provided to the extent required by law and in accordance with GAAP and (b) the Borrower and each of the Subsidiaries have paid, or have provided adequate reserves (in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning good faith judgment of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf management of the Borrower or such Subsidiary) in connection accordance with this Agreement or contained in any filing made by GAAP for the Borrower with payment of, all federal, state, provincial and foreign taxes applicable for the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with current fiscal year to the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingEffective Date. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is are in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements have not received written notice of any permits issued under such pending or threatened claims alleging potential liability or responsibility for violation of any Environmental Laws with respect to any such real estate asset or the Law on their respective businesses, operations of the Borrower or any of its Subsidiaries)and properties, except such non-compliance thatin each case as would not, individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect. (im) None On the Effective Date, immediately following the making of each Advance made on the Borrower or any of its Subsidiaries or any of their respective directors, officers or, Effective Date and after giving effect to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part application of the proceeds of such Advances, the Loans will be used, directly Borrower on a Consolidated basis with its Subsidiaries is Solvent. (n) The Borrower and each of the Subsidiaries have good and marketable title to or indirectly, (x) leasehold interests in all properties that are necessary for the purpose operation of financing their respective businesses as currently conducted and as proposed to be conducted, free and clear of all Liens (other than any activities or business of or with any Person that at Liens permitted by this Agreement) and except where the failure to have such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that good title would not reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of have a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering LawsMaterial Adverse Effect.

Appears in 1 contract

Sources: Credit Agreement (Dollar General Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectWisconsin. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132000, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Xxxxxx Xxxxxxxx, LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at September 30, 2001, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the nine months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender Party, fairly present present, subject, in the consolidated case of said balance sheet as at September 30, 2001, and said statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132000, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (or, to the knowledge of the Borrower’s knowledge, threatened) action threatened action, suit, investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would is reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) The Borrower and its Subsidiaries have filed all United States Federal income tax returns and all other material tax returns which are required to be filed by them and have paid all taxes due pursuant to such returns or pursuant to any assessment received by the Borrower or any of its Subsidiaries except such taxes or assessments, if any, as are being contested in good faith by appropriate proceedings. The charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of taxes are, in the opinion of the Borrower, adequate. (h) No proceeds of any Loan Advance will be used directly to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 if the Borrower has reason to know that the board of directors of the issuer of such equity security opposes or indirectly will oppose such acquisition. (i) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the applicable provisions purpose of ERISA, the Code and purchasing or carrying any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Planmargin stock. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each operations of the Borrower and each of its Domestic Subsidiaries is comply in compliance all material respects with all applicable statutesERISA, regulations environmental, health and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the safety requirements of any permits issued under such Environmental Laws law the failure to comply with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, which would not reasonably be expected to result in have a Material Adverse Effect. ; (iii) None the operations of each Foreign Subsidiary of the Borrower or any comply in all material respects with all applicable environmental, health and safety requirements of law, the failure to comply with which would have a Material Adverse Effect; and (iii) prior to the date hereof, the Borrower shall have inspected, and shall have caused each of its Subsidiaries or any of their respective directorsto have inspected, officers orits property owned in fee and, with respect to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United Stateseach building in which asbestos shall have been found, the United KingdomBorrower shall have caused such building to be in compliance with applicable rules and regulations under local law relating to asbestos containment, maintenance and removal. The term "Domestic Subsidiary" means a Subsidiary organized under the United Nations, the European Union, the respective institutions or agencies of any of the foregoinglaws of, or any other applicable sanctions authority (collectivelyhaving its principal place of business within, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged a jurisdiction located in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States and the term "Foreign Corrupt Practices Act of 1977, as amended, or Subsidiary" means any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)Subsidiary. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Manpower Inc /Wi/)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of warrants to the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as followsLender that: (a) 5.1 The Borrower (i) is a corporation legally incorporated, duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and existing, in good standing under the laws of New Jersey the jurisdiction of its incorporation and each of the respective states is qualified to carry on its business in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states all jurisdictions where the failure to be so qualified nature of its business or in good standing would not reasonably be expected to result in a Material Adverse Effectthe character of its properties make such qualification necessary. (b) 5.2 The borrowing of money by the Borrower and the execution, delivery and performance by the Borrower of this Agreement agreement and the Notes (i) grant of the security interest set forth in Section 4 of this agreement are within the Borrower’s corporate powers, powers and capacities of the Borrower and have been duly authorized by all necessary proper corporate actionproceedings. 5.3 There are no actions, and (ii) do not contravene (x) the Borrower’s charter suits or by-laws proceedings pending or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower threatened against or adversely affecting the Borrower or GBEM in any court or before or by any federal, state, municipal or other governmental department, commission, board, bureau or agency, United States or foreign, which might materially affect the financial condition of the Borrower or GBEM or the title to their property or assets. 5.4 The execution and delivery of this agreement, the consummation of the transactions contemplated by this agreement, the grant to the Lender of the security interest set forth in Section 4 of this agreement, and the compliance with the covenants, terms, provisions and conditions of this agreement will not conflict with or result in a breach of any of the terms or provisions of the Articles of Incorporation or by-laws of the Borrower or GBEM, any resolution of the directors or shareholders of the Borrower or GBEM, any laws of the United States or the State of Nevada governing the Borrower, or any other contractual restriction agreement or instrument to which the Borrower or GBEM is now a party or which purports to be binding on the Borrowerborrower or GBEM or their property or assets. (c) No authorization 5.5 This agreement and all other documents or approval or other action byinstruments to be delivered pursuant to this agreement will, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and delivered, constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower it in accordance with their respective terms, except as may be limited by other deeds, documents or instruments delivered pursuant to this agreement, or by applicable bankruptcy, reorganization, insolvency, reorganization, moratorium or similar and other laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityaffecting the enforcement of creditor's rights. 5.6 The borrowing of money under this agreement and the execution and delivery of this agreement do not require the consent or approval of any other party, including shareholders of the Borrower. 5.7 All balance sheets, earnings statements and other financial data, which have been or shall be furnished to the Lender to induce the Lender to enter into this agreement or otherwise in connection with this agreement have been or will be prepared in accordance with generally accepted accounting principles (i) The consolidated balance sheets which means, with respect to the Borrower and GBEM, generally accepted accounting principles consistently followed through prior fiscal periods as given effect to in previous financial statements of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, GBEM) and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, do or will fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for GBEM, and all other information, certificates, schedules, reports and other papers and data furnished by the fiscal year ended on such dateBorrower are or will be at the time they are so furnished, accurate and complete in all in accordance with generally accepted accounting principles consistently appliedmaterial respects. 5.8 As to each share of the Stock at any time pledged or required to be pledged hereunder: (iia) The unaudited consolidated balance sheets the Borrower is the sole legal, record and beneficial owner thereof, and the Borrower has good and marketable title thereto; (b) the Stock is validly issued, fully paid and non-assessable and the holder or holders thereof are not and will not be subject to any personal liability as such holder; (c) on the date hereof the Stock consists of 100% of the shares of common stock of GBEM; (d) the Stock is and will remain free and clear of all security interests, pledges, liens or other encumbrances, and restrictions on the transfer and assignment thereof, except pursuant to this agreement and those permitted in writing by Lender; (e) any consent, approval or authorization of or designation or filing with any governmental authority on the part of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth which is required in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent connection with the financial statements referred to in clause (i) of pledge and security interest granted under this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there agreement has been no material adverse change in the business, condition (financial obtained or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended.effected; and (f) There is there are no pending (oroutstanding options, to the Borrower’s knowledge, threatened) action warrants or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws requirements with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse EffectStock. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Loan Agreement (Fischer Watt Gold Co Inc)

Representations and Warranties of the Borrower. In order to induce the Lender to provide the Loan, Borrower makes the following representations and warranties to the Lender. Such representations and warranties shall be unaffected by any separate inquiries, credit and/or security investigation made by the Lender prior to or after execution of this Agreement and shall survive the closing of the transactions contemplated hereby. Any material misrepresentation shall be grounds for immediate termination at the sole discretion of the Lender: a. The Borrower represents has duly authorized the undersigned, and warrants, as granted all requisite legal and corporate power to execute and deliver in the name of the Effective Date (other than with respect Company this Agreement, and to paragraph (l)) execute and deliver any and all documents related to the Agreement, and to do and perform any and all such further acts and things as may be deemed necessary or advisable or have been instructed to do to carry out the intent and accomplish the purposes of the Closing Date, as follows:Agreement. (a) b. The Borrower (i) is a corporation duly organized and validly existing under and by virtue of the laws of the State of New Jersey Nevada, and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectsuch state. (b) c. The execution, delivery delivery, performance and performance compliance with the terms of the Agreement do not violate any provision of any applicable federal, state or local law, rule or regulation, or of any judgment, writ, decree, or order binding upon the Borrower or any provision of the Borrower's Articles of Incorporation or By-Laws [as amended] and do not conflict with or constitute a default under the provision of any agreement to which the Company is a party or by which it is bound. d. All consents, approvals, orders or authorizations of, and all qualifications, registrations, designations, declarations, or filings with, any federal or state governmental authority or self-regulatory organization on the part of the Company required in connection with the consummation of the transactions contemplated by the Agreement have been obtained and shall remain effective, and the undersigned is not aware of any proceedings or threat thereof, which question the validity thereof. e. Borrower warrants and represents that it is not now insolvent, bankrupt, or contemplating bankruptcy, that there are no legal claims filed or to its knowledge threatened against Borrower, whether judged with or without merit by the Borrower, and that there are no other impediments to the sale or transfer of the Stock. f. The execution and delivery of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, Collateral to be assigned and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance delivered by the Borrower of this Agreement are not subject to recall, restriction on voting, use, or the Notesother limitations. (d) g. This Agreement and the Notes (Agreement, when delivered hereunder) have been duly executed and delivered and delivered, will constitute the legala valid binding agreement, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective the terms, except such as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar other laws relating to or limiting affecting creditors' rights generally or by equitable principles relating to enforceabilitygenerally. (i) The consolidated balance sheets h. Neither the execution and delivery of this Agreement to be executed and delivered by Borrower pursuant hereto, nor the consummation by Borrower of the transaction contemplated hereby, will require any authorization, consent, approval, exemption or any other action by, or notice to, any governmental entity except that, where required, a Schedule 14C Information Statement describing the increase in the authorized common shares, consented to by the majority of shareholders, must be filed with the SEC. i. Borrower does not have material tax deficiencies, federal, state, foreign, county, local, or other, that would or could affect the solvency, final status of, or otherwise compromise Borrower in its ability to assign the Collateral Stock. j. To the best of Borrower's knowledge, the information supplied by Borrower to Lender contains no untrue statement of material fact or omits or shall omit a material fact, which would make such statements misleading. All statements and its Consolidated Subsidiaries information contained in any certificate, instrument, schedule or document delivered by Borrower shall be deemed representations and warranties made by borrower. k. Except for such filings as at September 30, 2013, and the related statements of income and cash flows may be imposed on Lender by Section 13(d) of the Securities Exchange Act of 1934, Borrower and its Consolidated Subsidiaries shall bear the responsibility for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, complying with all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the U.S. Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly ["SEC"] rules and regulations and for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) making all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, appropriate disclosures to the knowledge of the Borrower, each Multiemployer Plan, is SEC and other regulatory bodies in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, related to the United Kingdomissuance of the Collateral Stock [where applicable] and hereby warrants to the Lender that the Borrower has done so and will continue to do so. Borrower indemnifies Lender against any penalties, fees, fines, or lawsuits that may arise from Borrower's failure to so comply and/or make proper regulatory disclosures. l. In the event of an uncured default on the Loan, as described in Paragraph 1.i. of this Agreement, Lender will have the immediate right to sell the Shares or convert the Shares and sell the associated Common Stock. Consequently, the United NationsBorrower expressly warrants that it shall, at the end of the Cure Period [if the Cure is not effected], prepare and file, as soon as practicable, a Registration Statement on the appropriate SEC form covering the required Common Stock and shall use its reasonably diligent efforts to effect the registration of the Common Stock under the Securities Act of 1933, as amended. Should the Borrower not comply, the European Union, the respective institutions or agencies of Borrower shall pay all reasonable costs associated with any of the foregoing, collection actions or any other applicable sanctions authority (collectivelylegal remedies taken by Lender to collect on the amount due or any portion hereof due, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)said costs to include attorneys' fees. (ii) None m. Within 90 days of the closing date, the Borrower or any shall obtain Key Man life insurance, naming the Lender as beneficiary and shall cause the insurer to notify Lender of its Subsidiaries or their respective directorssame, officers or employees or, to with the knowledge amount(s) of the Borrower, agents, advisors or Affiliates acting for or on behalf insurance matching the principal balance of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Lawsloan [i.e., (y) the United States Foreign Corrupt Practices Act of 1977, amount may decrease as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of principal balance decreases]. If the proceeds of the Loans policy are paid while any part of the principal or interest on the Loan remains unpaid, a portion of the proceeds, up to the whole thereof, will be usedused to repay the unpaid principal and interest due on the Loan, directly or indirectlyunless otherwise agreed to in writing by the Lender. n. Within 90 days of the closing date, (x) and only upon Lender's notification of intent, the Borrower agrees, in good faith, to enter into negotiations with the Lender in order for the purpose of financing any activities Lender to establish a warrant or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result option position in the Borrower Borrower's common stock. o. The Borrower's Chief Executive Officer owns or any Lender being in breach of any Sanctions Lawscontrols [OR, (y) for any payments to any governmental official or employeeALTERNATIVELY, political partyLIST OF ADDITIONAL OFFICERS, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.AS NEEDED TO CONSTITUTE A MAJORITY "...

Appears in 1 contract

Sources: Collateral Loan Agreement (Accupoll Holding Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing and currently subsisting under the laws of the State Commonwealth of New Jersey Pennsylvania. The Borrower has all requisite power and (ii) authority to carry on its business in all material respects as now conducted and is duly qualified and to do business in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are locatedevery jurisdiction where such qualification is required, except, with respect to this clause (ii) only, in states except where the failure to be so qualified have such power, authority or qualification, individually or in good standing the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) any applicable law or any material contractual restriction binding on the Borrower or, to the knowledge of or affecting the Borrower, and will not result in or require the creation or imposition of any other contractual restriction binding on the BorrowerLien prohibited by this Agreement. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it, provided that the extension of the Maturity Date in accordance with Section 2.20 shall require appropriate governmental or third party authorization thereof prior to the effectiveness of such extension. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30, 20132016, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30, 2017, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for nine months then ended, copies of which have been furnished included in the SEC Filings prior to the Administrative Agentdate hereof, fairly present in all material respects, subject, in the consolidated case of said balance sheet as at June 30, 2017, and said statements of income and cash flows for nine months then ended, to year-end audit adjustments and the presentation of footnotes not required by Regulation S-X to be included in interim financial statements, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would be reasonably likely to have a material adverse effect on Material Adverse Effect (other than the business, condition (financial or otherwiseDisclosed Litigation) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby, and there has been no change in the status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation that would have a Material Adverse Effect. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (ki) No statement, Neither the Confidential Executive Summary (other than any projections and other information of a general economic or general industry nature included therein) nor any other written information, report, representation, exhibit or warranty made report furnished by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf pursuant to the terms of this Agreement, nor any of the Borrower in connection with this Agreement or information contained in any filing made by the Borrower with the Securities and Exchange Commission (herein, when taken as a whole with all other informationwhole, including amendments and supplements then filed with on the Securities and Exchange Commission) contains date so provided, contained any untrue statement of a material fact or omits any omitted to state a material fact required to be stated therein or necessary to make the statements therein, made therein and herein not misleading in light of the circumstances under which they were made, not misleading. (lj) The Borrower and its Subsidiaries are, as All financial projections included in the Confidential Executive Summary furnished by or on behalf of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereofBorrower have been, on a consolidated basisthe date provided, Solventprepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time made, it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, that no assurance can be given that any particular projection will be realized and that actual results may vary materially from projections. (mk) Each of the Borrower and its Subsidiaries No ERISA Event has occurred or is in compliance reasonably expected to occur that, when taken together with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect other such ERISA Events for which liability is reasonably expected to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregateoccur, would not reasonably be expected to result in a Material Adverse Effect. (il) Each Covered Person has implemented and maintains in effect policies and procedures designed to ensure compliance by such Covered Person and its respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Covered Persons and their respective officers and employees, and to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of the Borrower or any of its Subsidiaries Covered Persons or any of their respective directors, officers oror employees, nor to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject any agent of any sanctions Covered Persons that will act in any capacity in connection with or economic embargoes administered benefit from the credit facility established hereby, is a Sanctioned Person. No borrowing or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any use of the foregoing, proceeds thereof or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “transaction contemplated by this Agreement will violate Anti-Corruption Laws”) Laws or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)Sanctions. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Ugi Utilities Inc)

Representations and Warranties of the Borrower. The Borrower Each Borrower, on behalf of itself only and not on behalf of any other Borrower, represents and warrantswarrants to the Underwriter, Bond Counsel and the Issuer, as of the Effective Date date hereof (other than with respect to paragraph (lunless otherwise stated below)) and , as of the Closing Date and as of each Draw Down Date, as follows: (a) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, known to be pending or to the knowledge of the Borrower threatened against or affecting the Borrower or any of its officers, nor to the knowledge of the Borrower is there any basis therefor, wherein an unfavorable decision, ruling, or finding would materially adversely affect the transactions contemplated by the Indenture or the Borrower Documents, or which would adversely affect, in any way: (1) The legal existence or powers of the Affordable Borrower or the Market Rate Borrower, or their status as a limited partnership and a limited liability company, respectively; or (i2) The collection of revenue by the Borrower from which the Borrower is obligated to make payments under the Loan Agreement and the Reimbursement Agreement; or (3) The validity or enforceability of the Borrower Documents; or (4) The powers of the Borrower to enter into, execute and deliver the Borrower Documents, or to perform its obligations under and consummate the transactions contemplated by the Borrower Documents; or (5) The completeness or accuracy of the descriptions in the Preliminary Official Statement or the Official Statement of the Project, the Borrower or the private participants or any amendment or supplement thereto (nor, to the best actual knowledge of the Borrower, is there any basis therefor). (1) The Affordable Borrower is, and will be on the Closing Date, a corporation limited partnership, duly organized and validly existing under the laws of the State of New Jersey Delaware, with the power to own its property and (ii) is carry on its business as now being conducted, and duly qualified and authorized to do business in good standing the State; and (2) the Market Rate Borrower is, and will be on the Closing Date, a limited liability company, duly organized and validly existing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, exceptDelaware, with respect the power to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery own its property and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate actioncarry on its business as now being conducted, and (ii) duly qualified and authorized to do not contravene (x) business in the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the BorrowerState. (c) No authorization The Borrower has full power and authority (corporate or approval or other action byotherwise) to approve the terms of the Indenture, to execute and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by deliver the Borrower of this Agreement Documents and to perform and observe the terms and conditions hereof and thereof. The Borrower has full power, authority and legal right to engage in the business and activities conducted or proposed to be conducted by it with respect to the NotesProject. (d) This Agreement The officers or other representatives of the Borrower executing the Borrower Documents on behalf of the Borrower are (or were at the time of execution of any such document which has heretofore been executed) duly and properly in office and duly authorized to execute the Notes same. (e) The Borrower Documents, when delivered hereunder) have been duly executed and delivered and constitute by the Borrower, will be legal, valid and binding obligations agreements of the Borrower Borrower, each enforceable against the Borrower in accordance with their respective its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizationreorganization or moratorium, moratorium or other similar laws relating to or limiting affecting creditors’ rights generally generally, by the exercise of judicial discretion in accordance with general principles of equity, and, with respect to the indemnification provisions of this Bond Purchase Agreement, by applicable securities laws or held to be against public policy. (f) Neither the Borrower’s execution and delivery of the Borrower Documents, nor the Borrower’s consummation of the transactions contemplated by such documents, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereof or hereof will conflict with, violate or result in a material breach of any of the terms, conditions or provisions of any corporate restriction or of any agreement or instrument, or any statute, governmental rule or regulation, court order, judgment or decree to which the Borrower is now a party or by equitable principles relating which it is bound, or will constitute a default under any of the foregoing that has not been waived or consented to enforceabilityin writing by the appropriate party or parties. (g) All approvals, consents, authorizations, certifications and other orders of any governmental authority, board, agency or commission having jurisdiction, and all filings with any such entities that would constitute a condition precedent to, or the failure of which to obtain would materially adversely affect, the performance by the Borrower of its obligations hereunder, or the consummation of the transactions contemplated in the Indenture or the Borrower Documents, have been or will be duly obtained, except for such approvals, consents and orders as may be required under the “blue sky” or securities laws of any state in connection with the offering and sale of the Bonds. (h) All information and data furnished by the Borrower to the Issuer, the Bank and the Underwriter are complete and correct in all material respects. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance complied in all material respects withwith all applicable requirements of the United States and the State, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code their respective agencies and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of businessinstrumentalities, to own and operate the PBGC established under ERISA in connection with any Plan or Multiemployer PlanProject and has obtained all necessary permits, licenses, certifications, accreditations and qualifications required to conduct its business as it is presently being conducted. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning As of the Investment Company Act of 1940Closing Date, as amendedthe Borrower will have good and marketable title to the Project. (k) No statement, information, report, representation, exhibit or warranty made report about the Borrower furnished in writing by the Borrower in this Agreement or furnished to the Administrative Agent Issuer, the Bank or the Underwriter or any Lender by or on behalf of the Borrower other person in connection with this Agreement the Bonds, the Indenture or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) Documents contains any untrue statement material misstatement of fact or omits to state a material fact or omits any material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. (l) The Borrower information set forth in the Preliminary Official Statement and its Subsidiaries arethe Official Statement [(subject to such exceptions and qualifications as are acceptable to the Issuer and the Underwriter)], as of the date thereof and at all times subsequent thereto up to and including the Closing Date does not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (m) The Borrower is not now in default in any payment due with respect to any of its obligations in connection with any debt incurred by the Borrower. (n) As of the Closing Date, after giving effect to the Acquisition and the making all of the Loans warranties and application representations of the proceeds thereof, on a consolidated basis, SolventBorrower in the Borrower Documents are true and correct. (mo) Each As of the Closing Date, all conditions precedent to the issuance of the Bonds under the Bond Documents to be performed by the Borrower, its employees or its agents have been complied with. (p) Any certificate signed by any official of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations delivered to the Underwriter shall be deemed a representation and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect warranty by the Borrower to the Underwriter as to the truth of the conduct of its business statements therein contained with the same effect as if such representation and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or warranty were set forth in the aggregate, would not reasonably be expected to result in a Material Adverse Effectthis Bond Purchase Agreement. (iq) None of After the Closing Date, the Borrower shall not participate in the issuance of any amendment of or any of its Subsidiaries or any of their respective directors, officers or, supplement during the underwriting period to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)Official Statement except as prescribed herein. (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Bond Purchase Agreement

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as follows: (a) The Each of the Borrower (i) and its Principal Subsidiaries is a corporation (or, in the case of the Borrower, a voluntary association organized under a declaration of trust) duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of its organization, has the requisite corporate power (or, in the case of the respective states Borrower, the power under its declaration of trust) and authority to own its property and assets and to carry on its business as now conducted and is qualified to do business in which every jurisdiction where, because of the nature of its principal operating facilities are locatedbusiness or property, exceptsuch qualification is required, with respect to this clause (ii) only, in states except where the failure so to be so qualified or in good standing qualify would not reasonably be expected have a material adverse effect on the financial condition, properties, prospects or operations of the Borrower and its Principal Subsidiaries taken as a whole. The Borrower has the power under its declaration of trust to result in a Material Adverse Effectexecute, deliver and perform its obligations under the Loan Documents, to borrow hereunder and to execute and deliver its respective Notes. (b) The execution, delivery and performance of the Loan Documents by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers's powers under its declaration of trust, have been duly authorized by all necessary corporate or other similar action, and do not and will not contravene (i) the Borrower's declaration of trust or any law or legal restriction or (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on or affecting the Borrower or, to the knowledge or its properties or any of the Borrower, any other contractual restriction binding on the Borrowerits Principal Subsidiaries or its properties. (c) No authorization or approval or other action byExcept as disclosed in the Borrower's Disclosure Documents, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by each of the Borrower and its Principal Subsidiaries is not in violation of this Agreement any law, or in default with respect to any judgment, writ, injunction, decree, rule or regulation (including any of the Notesforegoing relating to environmental laws and regulations) of any court or governmental agency or instrumentality, where such violation or default would reasonably be expected to have a material adverse effect on the financial condition, properties, prospects or operations of the Borrower and its Principal Subsidiaries, taken as a whole. (d) This Agreement and All Governmental Approvals referred to in clause (i) in the Notes (when delivered hereunder) definition of "Governmental Approvals" have been duly executed obtained or made, and delivered all applicable periods of time for review, rehearing or appeal with respect thereto have expired, except as described below. If the period for appeal of the order of the Securities and constitute Exchange Commission approving the transactions contemplated hereby has not expired, the filing of an appeal of such order will not affect the validity of said transactions, unless such order has been otherwise stayed or any of the parties hereto has actual knowledge that any of such transactions constitutes a violation of the Public Utility Holding Company Act of 1935 or any rule or regulation thereunder. No such stay exists and the Borrower has no reason to believe that any of such transactions constitutes any such violation. Each of the Borrower and its Principal Subsidiaries have obtained or made all Governmental Approvals referred to in clause (ii) of the definition of "Governmental Approvals", except (A) those which are not yet required but which are obtainable in the ordinary course of business as and when required, (B) those the absence of which would not materially adversely affect the financial condition, properties, prospects or operations of the Borrower or any of its Principal Subsidiaries and (C) those which the Borrower is diligently attempting in good faith to obtain, renew or extend, or the requirement for which the Borrower is contesting in good faith by appropriate proceedings or by other appropriate means; in each case described in the foregoing clause (C), except as is disclosed in the Borrower's Disclosure Documents, such attempt or contest, and any delay resulting therefrom, is not reasonably expected to have a material adverse effect on the financial condition, properties, prospects or operations of the Borrower or any of its Principal Subsidiaries or to magnify to any significant degree any such material adverse effect that would reasonably be expected to result from the absence of such Governmental Approval. (e) The Loan Documents are legal, valid and binding obligations of the Borrower Borrower, enforceable against the Borrower Borrower, in accordance with their respective terms; subject to the qualification, except as may be limited by bankruptcyhowever, insolvency, reorganization, moratorium or that the enforcement of the rights and remedies herein and therein is subject to bankruptcy and other similar laws relating to of general application affecting rights and remedies of creditors and the application of general principles of equity (regardless of whether considered in a proceeding in equity or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law). (f) The (i) The audited consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20131996, and the related audited consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year Fiscal Year then ended as included in the Borrower's Annual Report on Form 10-K for such Fiscal Year and (ii) the unaudited consolidated balance sheets of the Borrower as at March 31, 1997, June 30, 1997 and September 30, 1997, and the unaudited consolidated statements of income and cash flows of the Borrower for the respective Fiscal Quarters then ended, copies of which have been furnished to the Administrative Agent, fairly present in all material respects the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower at and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all and have been prepared in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, 1996 there has been no material adverse change in the businessconsolidated financial condition, condition (financial operations, properties or otherwise) or results of operations prospects of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiariesif any, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan's Disclosure Documents. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Northeast Utilities System)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) and each of its Subsidiaries is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the jurisdiction of its incorporation and each is duly qualified to do business in, and is in good standing in, all other jurisdictions where the nature of its business or the respective states in which its principal operating facilities are located, except, with respect to this clause nature of property owned or used by it makes such qualification necessary (ii) only, in states except where the failure to be so qualified or in good standing qualify would not reasonably be expected to result in have a Material Adverse Effectmaterial adverse affect on the business, financial condition, operations, results of operations or prospects of the Borrower and its Subsidiaries, taken as a whole). (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) other Loan Documents to which it is or will be a party are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate actionaction (other than any corporate action constituting a Commitment Increase Approval or an Extension Approval, each of which, on and at all times following the date of any Commitment Increase, in the case of Commitment Increase Approvals, or on and at all times following the date of any extension of the Revolving Period or Term Election, in the case of Extension Approvals, will have been obtained and will not have been revoked), and (ii) do not and will not contravene (xi) the Borrower’s 's charter or by-laws laws, (ii) any law, subject to the receipt of all Commitment Increase Approvals, Post December 31, 2000 Borrowing Approvals and Extension Approvals, as applicable, or (yiii) law any legal or any material contractual restriction binding on or affecting the Borrower orBorrower; and such execution, delivery and performance do not and will not result in or require the creation of any Lien (other than pursuant to the knowledge Loan Documents) upon or with respect to any of the Borrower, any other contractual restriction binding on the Borrowerits properties. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for in connection with the due execution, delivery and or performance by the Borrower of this Agreement any Loan Document, other than (i) Release No. 35-26956; 70-9317, issued by the Securities and Exchange Commission on December 18, 1998, and Release No. 35-27069; 70-9455, issued by the Securities and Exchange Commission on August 26, 1999, which releases are final and in full force and effect and not subject to appeal, rehearing, review or reconsideration and (ii) any Governmental Approval constituting a Commitment Increase Approval, each of which, on and at all times following the date of any Commitment Increase, will have been obtained and will be final and in full force and effect and not subject to appeal, rehearing, review or reconsideration; (iii) any Governmental Approval constituting a Post December 31, 2000 Borrowing Approval, each of which, on and at all times following the date of any Borrowing on or after December 31, 2000, will have been obtained and will be final and in full force and effect and not subject to appeal, rehearing, review or reconsideration; and (iv) any Governmental Approval constituting an Extension Approval, each of which, on and at all times following the date of any extension of the Revolving Period or the NotesTerm Election, will have been obtained and will be final and in full force and effect and not subject to appeal, rehearing, review or reconsideration. (d) This Agreement is, and each other Loan Document to which the Notes (Borrower will be a party when delivered hereunder) have been duly executed and delivered and constitute the hereunder will be, legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as subject to the qualifications, however, that the enforcement of the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general application affecting rights and remedies of creditors and that the remedy of specific performance or of injunctive relief is subject to the discretion of the court before which any proceedings therefor may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilitybrought. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30December 31, 20131999, there has been no material adverse change in the business, condition (financial or otherwise) or condition, operations, results of operations or prospects of the Borrower and its Subsidiaries, taken as a whole, as shown on or in the Borrower's ability to perform its obligations under this Agreement or any other Loan Document to which it is or will be a party. (f) The audited consolidated balance sheet sheets of the Borrower and its Subsidiaries as of such date at December 31, 1999, and the related consolidated statement audited statements of net income of the Borrower and its Subsidiaries for the fiscal year then ended, and the unaudited consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as at June 30, 2000 and the related unaudited consolidated and consolidating statements of income for the six-month period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the six months ended June 30, 2000, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance, in all material respects, with generally accepted accounting principles consistently applied. (fg) There Except as disclosed in the Borrower's Report on Form 10-K for the year ended December 31, 1999 and Report on Form 10-Q for the period ended June 30, 2000, there is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against affecting the Borrower or any of its Subsidiaries or properties before any court, governmental agency or arbitrator, in which there is likely that might reasonably be expected to be an adverse decision that materially adversely affect (i) would have a material adverse effect on the business, condition (financial or otherwise) or condition, results of operations or prospects of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports the ability of the Borrower to affect the legality, validity, binding effect or enforceability of perform its obligations under this Agreement or any Note. (g) No proceeds of other Loan Document to which the Borrower is or is to be a party; and since December 31, 1999 there have been no material adverse developments in any Loan will be used directly action or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)proceeding so disclosed. (h) The Borrower and its Subsidiaries have filed (No ERISA Event has occurred or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) is reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws occur with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations Plan of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or ERISA Affiliates which would result in a material liability to the aggregate, would not Borrower. No "prohibited transaction" has occurred with respect to any Plan of the Borrower that is reasonably be expected to result in a Material Adverse Effect. (i) None of material liability to the Borrower. Neither the Borrower or nor any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and ERISA Affiliates has instituted and maintained policies, procedures and a system of internal controls designed incurred nor reasonably expects to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing incur any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments material withdrawal liability under ERISA to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering LawsMultiemployer Plan.

Appears in 1 contract

Sources: Credit Agreement (Alliant Energy Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws laws, (ii) applicable law or (yiii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or, other than as would not reasonably be expected to have a Material Adverse Effect, any other third party, is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as to the extent such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or and by equitable principles relating to enforceabilityprinciples. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132017, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, copies of which have been furnished to the Administrative Agenteach Lender, fairly present the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132017, there has been no material adverse change Material Adverse Change other than as disclosed in any periodic report filed prior to the business, condition (financial or otherwise) or results of operations of date hereof by the Borrower with the Securities and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedExchange Commission. (f) There is no pending (or, to the knowledge of the Borrower’s knowledge, threatened) action threatened action, suit, investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly Note or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors consummation of the Federal Reserve System)transactions contemplated hereby. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Celgene Corp /De/)

Representations and Warranties of the Borrower. The Borrower represents and warrantsBorrower, as of hereby represents/warrants to/ covenants/ undertakes with the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, Bank as follows: (a) The Borrower has given complete and accurate information and details in the application form about himself and the Property b) The Borrower shall make available to the Bank such security (including mortgage over the Property) in such form and substance as may be required by the Bank; c) The Borrower is (when the Property is in existence) or shall be (when the Property shall come in existence upon the proposed utilization of the Loan) absolutely seized and possessed with and sufficiently entitled to the Property; d) The Borrower shall always have until all his dues hereunder are not repaid to the Bank, a clear and marketable title to the Property, free from all encumbrances whatsoever e) The Borrower shall maintain the Property in good order and habitable condition and not allow it to deteriorate or commit any act which is destructive or permanently injurious to the property or do anything which will render the security in favour of the Bank, insufficient; f) The Borrower has no pending claims, demands, litigation or proceedings against him before any court or authority (public or private); g) The Borrower shall ensure that the purpose for which the Loan is advanced by the Bank is fulfilled in all respects and produce to the Bank, the necessary documents, including construction completion certificate, occupancy certificate and/or the purchase documents, as may be required by the Bank; h) The Borrower shall not, during the tenure of this Agreement, avail of or obtain any further loan or facility on the security of the Property without settling the loan of the bank in its entirety. i) The Borrower shall notify the Bank of any event or circumstances which might be or become a cause of delay in the commencement, construction or completion of the construction/purchase/modification of the Property; j) The Borrower shall ensure that all permission, intimations, notice, etc., which may be required by law or under the terms of any bye-law agreement or document for creation of any security in future in favour of Bank shall be duly granted and the conditions thereof shall be duly complied with. k) The Borrower shall duly and punctually comply with all terms and conditions applicable and do such acts (as also the rules, regulations and bylaws of the concerned entity, whether society, company or condominium of apartment owners) as required for holding as its lawful owner and continuing in possession of the Property; l) The Borrower shall not be entitled to demand that the Bank continue to disburse the Loan if the (i) is a corporation duly organized and validly existing under construction of or pertaining to the laws Property is, for any reason whatever, in the sole decision of the State of New Jersey and Bank, unduly delayed or stopped; or (ii) the Loan is duly qualified and not drawn fully in good standing under the laws terms of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect Schedule to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectAgreement. (bm) The executionBorrower shall furnish post-dated cheques/Standing Instruction, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powersNACH, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited required by bankruptcythe bank, insolvencyat the time of loan documentation and shall replenish the said post-dated cheques/Standing Instruction/ECS, reorganizationNACH, moratorium as and when the numbers of post-dated cheques/Standing Instruction, NACH, gets reduced. As and when required by the Bank, the Borrower shall issue such additional/replacement post-dated cheques/NACH/ECS mandate/Standing Instruction or similar laws relating any other form of electronic mandate. The Borrower confirms and consents that post-dated cheques/Standing Instruction, NACH issued pursuant to or limiting creditors’ rights generally or this condition shall be utilised by equitable principles relating the Bank to enforceabilityrealise the dues of the borrower under any other facility, in whatever capacity. (n) The Borrower shall comprehensively insure and keep insured with the Bank as a sole beneficiary, i) The consolidated balance sheets the Property for its full market value or replacement cost and ii) whenever required by the Bank, the risk of death and injury of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows - shall assign in favour of the Borrower Bank and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished submit to the Administrative AgentBank the aforesaid original insurance policy document(s) and premium/payment receipts; - shall promptly inform the Bank of any loss or damage to the property due to any force majeure or Act of God; - shall do all acts as may be required to maintain the Bank's status of sole beneficiary under the said insurances and receive money thereon; o) Whenever called upon by the Bank to do so, fairly present the consolidated financial condition Borrower shall provide the Bank with Borrower(s): 1. Statement of annual income certified and audited by a practicing Chartered Accountant (with his registration number mentioned therein) along with a copy of the Borrower tax returns filed with the income tax authorities duly certified by such Chartered Accountant (with his registration number mentioned therein); and 2. Statement of total wealth and its Consolidated Subsidiaries as at such date and the consolidated results a copy of the operations of wealth tax returns (if any) filed with the wealth tax authorities certified and audited by the practicing Chartered Accountant (with his registration number mentioned therein); 3. Such other information/documents concerning his employment, trade, business, profession or otherwise as the Bank may require from time to time, in addition to the income/financial statements p) The Borrower shall promptly and its Consolidated Subsidiaries for without requiring any notice or reminder from the fiscal year ended on such dateBank, all repay to the Bank the Loan in accordance with generally accepted accounting principles consistently appliedthe Repayment Terms mentioned in the Schedule or as may be amended from time to time pursuant to revision of External Benchmark Rate; q) The Borrower shall (in case of more than one borrower) be jointly and severally liable to repay the Loan, interest and all other sums due and payable under this Agreement and to observe its terms and conditions; r) The Borrower shall pay and discharge all rates, taxes outgoings and charges pertaining to the Property, including to the society/condominium/company, promoters, bodies and authorities (public or private); s) The Borrower shall ensure that all guarantors duly perform and discharge all their obligations under their respective letter(s) of Guarantee and all other writings executed/rendered by them to the Bank pursuant to the terms and conditions of this Agreement t) The Borrower shall inform the Bank of any change in his employment, business or profession within 7 days of such change u) The Borrower shall not change the user of the Property; v) The Borrower shall not during the tenure of this Agreement, either part with possession of or create third party rights in the Property or any part of it (whether by way of sale, exchange, lease, mortgage, agreement or option or otherwise); w) The Borrower shall not combine, merge, amalgamate or consolidate the Property with any other property with any right of way or easement in to or over the Property; x) The Borrower shall render to Bank all such assistance and co-operation as Bank may require for protecting the Bank's interest and/or enforcing Bank's rights under this Agreement and/otherwise in connection with the loan or any security that may be made available to the Bank. (iiy) The unaudited consolidated balance sheets of Borrower shall promptly notify the Bank if the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows receives notice or any application / petition being filed for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of declaring the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject insolvent or if any other legal proceeding filed or intended to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial be filed or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding initiated against the Borrower is received by the borrower or if a Custodian or Receiver is appointed on any of its Subsidiaries before the Borrower's properties, business or undertaking or if any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its SubsidiariesBorrower's properties, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on business or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Noteassets is/are attached. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (hz) The Borrower and its Subsidiaries have filed (shall not stand surety or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) guarantor for any payments to any governmental official third party liability or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.obligation;

Appears in 1 contract

Sources: Loan Agreement

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectOhio. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents and which are delivered hereunder and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter charter, regulations or by-laws laws, as applicable, or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement any Loan Document, except for those authorizations, approvals, actions, notices and filings listed on Schedule 4.01(c) hereto, all of which have been duly obtained, taken, given or the Notesmade and are in full force and effect. (d) This Agreement has been, and each of the Notes (other Loan Documents when delivered hereunder) will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the other Loan Documents, when delivered hereunder, will be, the legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries and variable interest entities in which the Borrower is the primary beneficiary as at September 30January 29, 20132011, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year Fiscal Year then ended, accompanied by an opinion of PricewaterhouseCoopers LLP, independent public accountants, copies of which have been furnished to the Administrative Agenteach Lender, fairly present the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since January 29, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132011, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material Material Adverse Effect (other than the Disclosed Litigation) and there has been no adverse change in the status, or financial effect on the business, condition (financial Borrower or otherwise) or results any of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by of the Borrower with the Securities and Exchange Commission Disclosed Litigation from that described on or before October 5, 2014Schedule 3.01(b) hereto, or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement the Loan Documents or any Notethe consummation of the transactions contemplated hereby and thereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance or of any Letter of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Kroger Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement Amendment and the Notes (i) Credit Agreement as amended by this Amendment are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not (i) contravene (x) the Borrower’s 's charter or by-laws laws, (ii) violate any law, rule or regulation (y) law including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), or any material contractual restriction order, writ, judgment, injunction, decree, determination or award, binding on or affecting the Borrower oror any of its Subsidiaries or any of their properties, to (iii) conflict with or result in the knowledge breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting the Borrower, any other contractual restriction binding on of its Subsidiaries or any of their properties or (iv) except for the BorrowerLiens created under the Collateral Documents result in or require the creation or imposition of any Lien upon or with respect to any of the properties of the Borrower or any of its Subsidiaries, except such contraventions, violations or conflicts which could not be reasonably likely to have a Material Adverse Effect. (cb) No authorization or approval or other action by, Governmental Authorization and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other third party is required for the due execution, delivery and or performance by the Borrower of this Agreement Amendment or the NotesCredit Agreement as amended by this Amendment. (dc) This Agreement and the Notes (when delivered hereunder) have Amendment has been duly executed and delivered by the Borrower. This Amendment and constitute the Credit Agreement as amended by this Amendment are legal, valid and binding obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as to the extent that such enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws of general application relating to or limiting affecting enforcement of creditors' rights generally or by and laws concerning equitable principles relating to enforceabilityremedies. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Headwaters Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectUtah. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) any law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement except such as have been duly obtained or the Notesmade and are in full force and effect. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute is the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The statement of consolidated balance sheets financial position of the Borrower and its Consolidated consolidated Subsidiaries as at September 30December 31, 20132003, and the related statements of income and consolidated income, consolidated cash flows and changes in common stockholders’ equity of the Borrower and its Consolidated consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, each as reported on by Deloitte & Touche LLP, present fairly, in all material respects, the Administrative Agent, fairly present the consolidated financial condition position of the Borrower and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132003, there has been no material adverse change in such financial position or operations of the businessBorrower and its consolidated Subsidiaries, taken as a whole. (f) There is no pending or threatened action or proceeding affecting the Borrower or any of its consolidated Subsidiaries before any court, governmental agency or arbitrator, (i) which purports to affect the legality, validity or enforceability of this Agreement, or (ii) except as set forth in the Borrower’s annual report on Form 10-K for the fiscal year ended December 31, 2003 (copies of which have been furnished to each Bank), which may materially adversely affect the financial condition or operations of the Borrower or any of its Subsidiaries, taken as a whole. (financial or otherwiseg) After applying the proceeds of each Advance and Special Rate Loan, not more than 25% of the value of the assets of the Borrower and its Subsidiaries (as determined in good faith by the Borrower) that are subject to Section 5.02(a) or results Section 5.02(d) will consist of or be represented by Margin Stock. (h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or Special Rate Loan will be used for any purpose which violates the provisions of the regulations of the Board of Governors of the Federal Reserve System. If requested by any Bank or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Bank a statement in conformity with the requirements of Federal Reserve Form U-1 referred to in Regulation U, the statements made in which shall be such, in the opinion of each Bank, as to permit the transactions contemplated hereby in accordance with Regulation U. (i) No Termination Event has occurred nor is reasonably expected to occur with respect to any Plan which may materially adversely affect the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against . Neither the Borrower or nor any of its Subsidiaries before ERISA Affiliates has incurred nor reasonably expects to incur any court, governmental agency withdrawal liability under ERISA to any Multiemployer Plan which may materially adversely affect the financial condition or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole. Schedule B (Actuarial Information) to the 2002 annual report (Form 5500 Series) with respect to each Plan, except as disclosed copies of which have been filed with the Internal Revenue Service and furnished to each Bank, is complete and accurate in filings made by all material respects and in all material respects fairly presents the funding status of each Plan. No Reportable Event has occurred and is continuing with respect to any Plan which may materially adversely affect the financial condition or operations of the Borrower with the Securities and Exchange Commission on or before October 5its Subsidiaries, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Notetaken as a whole. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (hj) The Borrower and its Subsidiaries are in compliance with all applicable laws and regulations relating to the environment or to the discharge, transport or storage of hazardous materials except to the extent that non-compliance therewith would not have filed (a material adverse effect on the financial condition or have obtained extensions operations of the time by which they are required to file) all United States Federal income tax returns Borrower and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed its Subsidiaries taken as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effectwhole. (ik) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (ki) No statement, information, report, representation, or warranty made by All written information concerning the Borrower in and its Subsidiaries (excluding financial projections) that has been made available on or before the date of this Agreement or furnished to the Administrative Agent or any Lender Bank by or on behalf of the Borrower or any of its representatives under this Agreement or in connection with the transactions contemplated hereby is, on and as of the date of this Agreement or contained Agreement, correct in any filing made by all material respects and does not contain, on and as of the Borrower with the Securities and Exchange Commission (taken as a whole with all other informationdate of this Agreement, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any omit to state a material fact required to be stated therein or necessary in order to make the statements therein, contained therein not misleading in light of the circumstances under which they such statements were made, not misleading. ; (lii) The Borrower and its Subsidiaries are, as of all written information furnished after the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of date hereof by the Borrower or any of its Subsidiaries)representatives to the Administrative Agent and the Banks in connection with this Agreement and the transactions contemplated hereby will, except on the date as of which such non-compliance thatinformation is stated or certified, individually be correct in all material respects and will not, on the date as of which such information is stated or certified, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the aggregate, would statements contained therein not reasonably misleading in light of the circumstances under which such statements are made; and (iii) all financial projections concerning the Borrower and its Subsidiaries that have been or will be expected prepared by the Borrower in writing and made available to result in a Material Adverse Effect. (i) None of the Administrative Agent or any Bank by the Borrower or any of its Subsidiaries representatives under this Agreement or any in connection with the transactions contemplated hereby have been or will be prepared in good faith based upon 5-YEAR CREDIT AGREEMENT reasonable assumptions as of their respective directors, officers or, the date such projections were made available to the knowledge Administrative Agent or such Bank (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Borrower, employees, agents, advisors or Affiliates is and that no assurance can be given that the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”projections will be realized). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Revolving Credit Agreement (Union Pacific Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower Each Loan Party (i) is a corporation duly organized and organized, validly existing and in good standing under the laws of the State jurisdiction of New Jersey and its incorporation, (ii) is duly qualified and in good standing as a foreign corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not have a Material Adverse Effect and (iii) has all requisite corporate power and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. All of the outstanding capital stock of the Borrower has been validly issued, is fully paid and non-assessable. (b) Set forth on Schedule II hereto is a complete and accurate list of all Material Subsidiaries of the Borrower, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, the number of shares of each class of capital stock authorized, and the number outstanding and the percentage of the outstanding shares of each such class owned (directly or indirectly) by the Borrower, and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding capital stock of all of such Subsidiaries has been validly issued, is fully paid and non- assessable and is owned by the Borrower or one or more of its Subsidiaries free and clear of all Liens. Each such Subsidiary (i) is a corporation duly organized, validly existing and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are locatedincorporation, except, with respect to this clause (ii) only, is duly qualified and in states good standing as a foreign corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be so qualified or in good standing licensed would not reasonably be expected to result in have a Material Adverse EffectEffect and (iii) has all requisite corporate power and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. (bc) The execution, delivery and performance by the Borrower each Loan Party of this Agreement each Loan Document to which it is or is to be a party, as appropriate, and the Notes (i) consummation of the transactions contemplated hereby, are within the Borrower’s such Person's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not (i) contravene (x) the Borrower’s such Person's charter or by-laws laws, (ii) violate any law (including, without limitation, the Exchange Act), rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (yiii) law conflict with or result in the breach of, or constitute a default under, any material contractual restriction loan agreement, contract, indenture, mortgage, deed of trust, lease or other instrument binding on the Borrower or, to the knowledge of or affecting the Borrower, any of its Subsidiaries or any of its properties, the effect of which conflict, breach or default is reasonably likely to have a Material Adverse Effect or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of the Borrower or any of its Subsidiaries. None of the Borrower nor any of its Subsidiaries, is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other contractual restriction binding on instrument, the Borrowerviolation or breach of which would be reasonably likely to have a Material Adverse Effect. (cd) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for (i) the due execution, delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party or for the Borrower consummation of this Agreement the other transactions contemplated hereby or (ii) the Notesexercise by the Administrative Agent or any Lender of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect. (de) This Agreement has been, and the Notes (each other Loan Document when delivered hereunder) hereunder will have been been, duly executed and delivered by each Loan Party which is a party thereto. This Agreement is, and constitute each other Loan Document when delivered will be, the legal, valid and binding obligations of the Borrower each Loan Party which is a party thereto, enforceable against the Borrower such Person, in accordance with their respective its terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting the enforceability of creditors' rights generally or and by equitable general principles relating to enforceabilityof equity. (if) The consolidated Each of the audited Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 2013, 1996 and the related audited Consolidated statements of income and earnings, cash flows and stockholders' equity of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of all of which have been furnished to the Administrative Agenteach Lender, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30GAAP. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20131996, there has been no material adverse change in Material Adverse Change relating to the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedBorrower. (fg) There is no pending (oror threatened action, to the Borrower’s knowledgeproceeding, threatened) action governmental investigation or proceeding against the Borrower arbitration affecting any Loan Party or any of its their Subsidiaries before any court, governmental agency or arbitrator, in which there is reasonably likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial Material Adverse Effect or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) that purports to affect the legality, validity, binding effect validity or enforceability of this Agreement any Loan Document or any Notethe consummation of the transactions contemplated hereby. (gh) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock Margin Stock and no proceeds of any Advance will be used (within i) to purchase or carry any Margin Stock, except in connection with Permitted Acquisitions and the meaning of Regulation U issued repurchase by the Board Borrower of Governors its capital stock, or (ii) to extend credit to others for the purpose of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (purchasing or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effectcarrying any Margin Stock. (i) Each PlanExcept as set forth on Schedule III hereto, and, to the knowledge Borrower and each ERISA Affiliate of the Borrower, each Multiemployer Plan, is Borrower are in compliance in all material respects with, and has been administered in all material respects in compliance with, with the applicable provisions of ERISA, ERISA and the Code with respect to each Plan. No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan. The amount of all Unfunded Pension Liabilities under all current Plans does not exceed $25,000,000. Neither the Borrower nor any of its ERISA Affiliates has incurred any Withdrawal Liability to any Multiemployer Plan within the past five years, and it is not reasonably expected that contributions shall be made or required or that such liability shall be incurred in any other Federal case in amounts or State lawunder circumstances that would be reasonably likely to result in a material liability to the Borrower or any ERISA Affiliate of the Borrower. Without limiting The consolidated financial statements of the foregoingBorrower and its Subsidiaries fully reflect any material liability with respect to "expected postretirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106. Neither the Borrower nor any of its ERISA Affiliates would reasonably be expected to incur a material liability relating to the funding status of any RBLI Plan. No ERISA Affiliate of RBLI has incurred any liability under Title IV of ERISA arising in connection with the termination of, or complete or partial withdrawal from, any RBLI Plan or Multiemployer Plan that would reasonably be expected to become a material liability of the Borrower or any of its ERISA Affiliates. (j) Except as set forth on Schedule III hereto, neither the Borrower nor any of its Subsidiaries has incurred currently maintains or contributes to any liability, Welfare Plan which provides post-retirement medical or life insurance benefits other than premiums payable in the ordinary course of business, pursuant to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning Section 4980B of the Investment Company Act Code or Section 601 through 608 of 1940, as amendedERISA. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf The operations and properties of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole each of its Subsidiaries comply with all other informationEnvironmental Laws, including amendments all necessary Environmental Permits have been obtained and supplements then filed with are in effect for the Securities operations and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each properties of the Borrower and its Subsidiaries is and the Borrower and each of its Subsidiaries are in compliance with all applicable statutessuch Environmental Permits, regulations and orders ofexcept, and as to all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and above, where the ownership of its property (including compliance with all applicable Environmental Laws with respect failure to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, do so would not be reasonably be expected likely to result in have a Material Adverse Effect. ; and no circumstances exist that are reasonably likely to (i) None form the basis of an Environmental Action against the Borrower or any of its Subsidiaries or any of their respective directorsproperties or (ii) cause any such property to be subject to any restrictions on ownership, officers oroccupancy, use or transferability under any Environmental Law that would, in the case of either (i) or (ii) above, be reasonably likely to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)have a Material Adverse Effect. (iil) The Borrower and each of its Subsidiaries has filed, has caused to be filed or has been included in all tax returns (Federal, state, local and foreign) required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties. (m) None of the Borrower or any of its Subsidiaries is an "investment company," or their respective directorsan "affiliated person" of, officers or employees or"promoter" or "principal underwriter" for, to an "investment company," as such terms are defined in the knowledge Investment Company Act of 1940, as amended. Neither the making of any Advances, nor the application of the proceeds or repayment thereof by the Borrower, agentsnor the consummation of the other transactions contemplated hereby, advisors will violate any provision of such Act or Affiliates acting for any rule, regulation or order of the Securities and Exchange Commission thereunder. (n) Each of the Borrower and each Subsidiary Guarantor is, individually and together with its Subsidiaries, Solvent. (o) Neither (i) any information provided by or on behalf of the Borrower or any of its Subsidiaries has engaged in to the Administrative Agent or any activity or conduct which would constitute a material violation of Lender nor (x) any Sanctions Laws, (yii) the United States Foreign Corrupt Practices Act Rights Offering Registration Statement, contained or contains any material misstatement of 1977fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading except that, as amendedto any financial model provided to the Lenders, such model was prepared in good faith by the Borrower's management based on assumptions believed to be reasonable when made and because assumptions as to future results are inherently subject to uncertainty and contingencies beyond the Borrower's control, actual results of the Borrower may be higher or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)lower. (iiip) Each Part A of Schedule IV hereto sets forth the name, amount and percent of class of each security of the Borrower beneficially owned on the date hereof by Roche Holdings and its Affiliates and Part B of Schedule IV hereto sets forth the name, amount and percent of class of each security of the Borrower to be owned by Roche Holdings and its Affiliates as of the Amendment Effective Date. (q) Set forth in Schedule V hereto is a complete and accurate list of all Debt of the Borrower and its Subsidiaries (other than Debt under this Agreement) with a principal or face amount in excess of $5,000,000 (the "Surviving Debt"), showing as of the date hereof the principal amount outstanding thereunder, the obligor and Affiliates has instituted and maintained policiesobligee thereof, procedures the interest rate applicable thereto, the maturity dates thereof and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part description of the proceeds of the Loans will be used, directly or indirectly, security interests (xif any) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or granted in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.respect thereof. ARTICLE V

Appears in 1 contract

Sources: Credit Agreement (Laboratory Corp of America Holdings)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes or CAF Notes (i) if any), and the consummation of the transactions contemplated hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not (i) contravene (x) the Borrower’s charter 's certificate of incorporation or by-laws or (y) any law or any material contractual restriction binding on the Borrower or, to the knowledge of or affecting the Borrower, or (ii) constitute a default under any existing indenture, loan agreement or other contractual restriction binding on material agreement to which the BorrowerBorrower or any Subsidiary of the Borrower is a party. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes or CAF Notes (if any), and no law or regulation is applicable that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby. (d) This Agreement has been, and each of the Notes or CAF Notes (if any) when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes or CAF Notes (if any) when delivered hereunder will be, the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30of December 31, 20132002, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to the Administrative Agenteach Lender, fairly present present, in all material respects, the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132002, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Noteother Loan Document or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within Margin Stock, and no proceeds of any Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the meaning purpose of Regulation U issued by the Board of Governors of the Federal Reserve System).purchasing or carrying any Margin Stock. CERC 364-Day Revolving Credit Agreement (h) Neither the Borrower nor any Subsidiary of the Borrower is an "investment company" as defined in, or otherwise subject to regulation under, the Investment Company Act of 1940, as amended. None of the execution and delivery of the Loan Documents by the Borrower or the performance of its obligations thereunder violate any regulation under the Public Utility Holding Company Act of 1935, as amended. (i) The Borrower is and each of its Subsidiaries have filed are in substantial compliance with all applicable laws, ordinances, rules, regulations, and requirements of governmental authorities (or have obtained extensions of including, without limitation, Environmental Laws and ERISA and the time by which they are required to filerules and regulations thereunder) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would any non-compliance that could not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made All written information heretofore furnished by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by for purposes of or on behalf of the Borrower in connection with this Agreement or contained in any filing made transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Borrower with to the Securities Administrative Agent or any Lender will be, true and Exchange Commission (taken accurate in all material respects on the date as a whole with all other information, including amendments and supplements then filed with of which such information is stated in the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were madesuch information was provided (as modified or supplemented by other information so furnished, not misleading. (l) The Borrower and its Subsidiaries are, when taken together as a whole as of the Closing Datedate so stated); provided, after giving effect that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based on assumptions believed to be reasonable at the time, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. The Borrower has disclosed to the Acquisition Administrative Agent any and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of all facts specific to the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect known as of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect date hereof to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations a Responsible Officer of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not that could reasonably be expected to result in a Material Adverse Effect. Effect or which could reasonably be expected to materially and adversely affect or may affect (i) None of to the extent the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United Statescan now reasonably foresee), the United Kingdombusiness, the United Nations, the European Union, the respective institutions operations or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each financial condition of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policiesSubsidiaries, procedures and taken as a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Lawswhole. (ivk) No part The Borrower is, and together with its Subsidiaries, taken as a whole, Solvent as of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawsdate hereof.

Appears in 1 contract

Sources: Credit Agreement (Centerpoint Energy Resources Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and validly existing joint venture that would be treated as a general partnership under the laws of the State of New Jersey Delaware and each of the Subsidiaries of the Borrower is a corporation, in each case duly organized, validly existing and (iiin the case of each Subsidiary) is duly qualified and in good standing under the laws of New Jersey the jurisdiction of its organization; each such Person (i) is duly qualified to do business and (in the case of each of the respective states Subsidiary) in good standing in each other jurisdiction in which it owns or leases property or in which the conduct of its principal operating facilities are located, except, with respect business requires it to this clause (ii) only, in states so qualify or be licensed except where the failure to so qualify or be so qualified or in good standing licensed would not reasonably be expected to result in have a Material Adverse EffectEffect and (ii) has all requisite corporate or other power and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. All of the joint venture interests in the Borrower are directly owned by the Venturers in equal shares free and clear of all Liens; all of the outstanding capital stock of Century Telecommunications has been validly issued, is fully paid and non-assessable and is owned by Century/Texas free and clear of all Liens; all of the outstanding capital stock of Century/Texas has been validly issued, is fully paid and non-assessable and is owned by Century Communications free and clear of all Liens; and all of the outstanding capital stock of Citizens Cable has been validly issued, is fully paid and non-assessable and is owned by Citizens Utilities free and clear of all Liens. (b) The execution, delivery and performance by the Borrower and each other Obligor of this Agreement Agreement, the Notes and the Notes (i) other Loan Documents and each other document to which it is or is to be a party, and the acquisition by the Borrower of any Subsidiary and the acquisition by any Subsidiary of any other Subsidiary and the other transactions contemplated hereby, are within the corporate or other powers of the Borrower’s corporate powers, such Subsidiaries and such other Obligors, as the case may be, have been duly authorized by all necessary corporate or other action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of contravene the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations joint venture agreement of the Borrower or any of its Subsidiaries), except such non-compliance that, individually the charter or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject bylaws of any sanctions or economic embargoes administered or enforced by other Obligors, as the United Statescase may be, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or violate any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of Governmental Rules (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.including

Appears in 1 contract

Sources: Credit Agreement (Century Communications Corp)

Representations and Warranties of the Borrower. The In order to induce the Administrative Agent and the Lenders party hereto to enter into this Amendment, the Borrower represents and warrantswarrants to the Administrative Agent and the Lenders that the following statements are true, as of the Effective Date (other than with respect to paragraph (l)) correct and as of the Closing Date, as followscomplete: (a) The Borrower (i) is a corporation duly organized the execution and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are Amendment is within the Borrower’s corporate powers, have partnership powers and has been duly authorized by all necessary corporate action, and partnership or other organizational action on the part of the Borrower; (ii) do the execution and delivery of this Amendment (a) does not contravene require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (xb) will not violate any applicable law or regulation or the Borrower’s charter or any order, judgment or decree of any Governmental Authority, by-laws or (y) law other organizational documents of the Borrower or any material contractual restriction binding on the Borrower orof its Subsidiaries, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization will not violate or approval result in a default under any material indenture, loan agreement, credit agreement, promissory note, letter of credit or other action byagreement binding upon the Borrower or any of its Subsidiaries or its assets, and no notice or give rise to or filing with, a right thereunder to require any governmental authority or regulatory body is required for the due execution, delivery and performance payment to be made by the Borrower or any of this Agreement or the Notes. its Subsidiaries, and (d) This Agreement and will not result in the Notes creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries (when delivered hereunderother than Liens created under the Loan Documents); (iii) have this Amendment has been duly executed and delivered by the Borrower and constitute the constitutes a legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws relating to or limiting affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or by equitable principles relating to enforceability.at law; (iiv) The consolidated balance sheets the representations and warranties made or deemed made by the Loan Parties in the Credit Agreement are true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) as of the Borrower date hereof except to the extent that such representations and its Consolidated Subsidiaries as at September 30, 2013, warranties expressly relate solely to an earlier date (in which case such representations and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which warranties shall have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower true and its Consolidated Subsidiaries as at such date correct in all material respects on and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date earlier date) and their consolidated results of operations except for changes in factual circumstances specifically and cash flows for such nine month period (subject to normal year-end adjustments).expressly permitted under the Loan Documents; (iiiv) Since September 30, 2013, there no Default or Event of Default has been no material adverse change in the business, condition occurred and is continuing; and (financial or otherwisevi) or results of operations as of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (orSecond Amendment Effective Date, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the best knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable information included in the ordinary course of business, Beneficial Ownership Certification provided on or prior to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished Second Amendment Effective Date to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained is true and correct in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingrespects. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Four Corners Property Trust, Inc.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, warrants as of the Effective Date (other than with respect and from time to paragraph (l)) and time thereafter as of the Closing Date, required under this Agreement as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Delaware. The Borrower is duly qualified and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing as a foreign corporation authorized to do business in each jurisdiction (other than its jurisdiction of incorporation) in which the nature of its activities or the character of the properties it owns or leases make such qualification necessary and in which the failure so to qualify would not reasonably be expected to result in have a Material Adverse Effectmaterial adverse effect on the financial condition or operations of the Borrower and its Subsidiaries, taken as a whole. (b) The execution, delivery and performance by the Borrower of this Agreement and each of the Notes (i) Notes, if any, delivered hereunder are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not contravene (xi) the Borrower’s charter certificate of incorporation or by-laws or (yii) law any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any material contractual restriction binding on the Borrower or, to the knowledge of or affecting the Borrower, any other contractual restriction binding on the Borrower. (c) No ; no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This , if any; and this Agreement is and each of the Notes (Notes, when delivered hereunder) have been duly executed and delivered and constitute , will be the legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to applicable bankruptcy, reorganization, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting creditors’ rights generally or by equitable and general principles relating to enforceabilityof equity. (ic) The Borrower’s most recent annual report on Form 10-K, containing the consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30, 2013Subsidiaries, and the related consolidated statements of income and of cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then endedSubsidiaries, copies of which have been furnished to each Lender pursuant to Section 5.01(e)(ii) or as otherwise furnished to the Administrative AgentLenders (including by posting on the website of the SEC at xxxx://xxx.xxx.xxx), fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at the date of such date balance sheet and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (iid) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30There is no pending or, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in to the Borrower’s Report knowledge, threatened claim, action or proceeding affecting the Borrower or any of its Subsidiaries which could reasonably be expected to have a material adverse effect on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on or which could reasonably be expected to affect the consolidated balance sheet as legality, validity or enforceability of such date this Agreement; and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any and each of its Subsidiaries before have complied, and are in compliance, with all applicable laws, rules, regulations, permits, orders, consent decrees and judgments, except for any courtsuch matters which have not had, governmental agency or arbitratorand would not reasonably be expected to have, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, financial condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (he) The Borrower and its Subsidiaries the ERISA Affiliates have filed (or have obtained extensions of the time by which they not incurred and are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Planincur any material liability in connection with their Single Employer Plans or Multiple Employer Plans, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, than ordinary liabilities for benefits; neither the Borrower nor any of its Subsidiaries ERISA Affiliate has incurred or is reasonably expected to incur any liability, other than premiums payable material withdrawal liability (as defined in the ordinary course Part I of business, Subtitle E of Title IV of ERISA) to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The ; and no Multiemployer Plan of the Borrower or any ERISA Affiliate is not an “investment company”, reasonably expected to be in reorganization or a company “controlled” by an “investment company”to be terminated, within the meaning of the Investment Company Act Title IV of 1940, as amendedERISA. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (lf) The Borrower has implemented and will maintain policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries areand their directors, as of the Closing Dateofficers and employees with applicable Anti-Corruption Laws and Sanctions Laws, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with applicable Anti-Corruption Laws and Sanctions Laws in all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) material respects. None of the Borrower or any of its Subsidiaries or any of their respective directors, officers Subsidiary or, to the knowledge of the Borrower, employeesany director, agents, advisors officer or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None employee of the Borrower or any Subsidiary acting in connection with or benefitting from the credit facility established hereby, is a Sanctioned Person. No borrowing of its Subsidiaries Advances will be made by the Borrower (A) for the purpose of an offer, payment, promise to pay, or their respective directorsauthorization of the payment or giving of money, officers or employees oranything else of value, to any Person, in violation of applicable Anti-Corruption Laws or (B) for the purpose of financing, funding or facilitating unauthorized transactions with any Sanctioned Person. To the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of no transactions undertaken by the Borrower or its Subsidiaries has engaged hereunder will be undertaken in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) Laws or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Walt Disney Co/)

Representations and Warranties of the Borrower. The Borrower represents and warrants, warrants to each Secured Party as follows (such representations and warranties being made as of the Effective Date (other than with respect to paragraph (l)) and as of Signing Date, the Initial Closing Date, as follows:the Construction Facility Closing Date and, except to the extent otherwise specified herein, on each subsequent date on which such representations and warranties are made or deemed to be made hereunder): (a) The Borrower (i) is a corporation sociedad anonima de capital variable duly organized formed and validly existing under the laws of the State of New Jersey Mexico and (ii) is duly qualified to do business in all jurisdictions where the nature of its business or the nature of property owned or used by it makes such qualifications necessary. The Borrower has all requisite power and authority to own or hold under lease and operate the property it purports to own or hold under lease and to carry on its business as now being conducted and as proposed to be conducted in good standing under the laws of New Jersey and each respect of the respective states in which its principal operating facilities Project. The Shareholders are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectsole shareholders of the Borrower. The Borrower has no Subsidiaries. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) each Transaction Document to which it is a party are within the corporate powers of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law any Requirement of Law, any EHS Requirement or any material contractual restriction binding on Contractual Obligation (other than Clause 24.1(b) of the Borrower or, Public Works Contract (but only in the event of the application of any casualty insurance proceeds to the knowledge mandatory prepayment of amounts outstanding under the Financing Documents) and Clause 26.1(i) of the Borrower, any other contractual restriction binding on Public Works Contract (with respect to the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations covenant of the Borrower enforceable against under Section 6.02(l) hereof) but only in the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating event the Contractor refuses to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished enter into any modification agreement required pursuant to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended Public Works Contract) binding on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against affecting the Borrower or any of its Subsidiaries before properties or assets, and such execution, delivery and performance do not and shall not result in or require the creation of any court, governmental agency Lien upon or arbitrator, in which there is likely with respect to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations any of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge properties of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable Permitted Liens, or result in the ordinary course acceleration of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”obligation under, or in a company “controlled” by condition or event that constitutes (or that, upon notice or lapse of time or both, would constitute) an “investment company”event of default under, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf Contractual Obligation of the Borrower in connection with this (other than Clauses 24.1(b) and 26.1(i) of the Public Works Contract to the extent described above). This Common Agreement or contained in any filing made and each other executed Transaction Document to which the Borrower is a party have been duly executed and validly delivered by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) Borrower. The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, not in default under any and all applicable restrictions imposed by, Requirements of Law and all Governmental Authorities, in respect of the conduct material terms and provisions of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse EffectContractual Obligations. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Common Agreement (Ica Corp)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, subject to any applicable debt limitations established by the Board of Directors of the Borrower, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132003, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30, 2004, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the six months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present in all material respects, subject, in the consolidated case of said balance sheet as at June 30, 2004, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of . Except as disclosed in filings with the Borrower Securities and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished Exchange Commission prior to the Administrative AgentEffective Date, fairly presentsince December 31, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132003, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedMaterial Adverse Change. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly Note or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors consummation of the Federal Reserve System)transactions contemplated hereby. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: 364 Day Credit Agreement (SBC Communications Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey Delaware; each LC Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation. The Borrower and each of the its Subsidiaries possess all corporate powers and all other authorizations and licenses necessary to engage in their respective states in which its principal operating facilities are locatedbusinesses, except, with respect to this clause (ii) only, in states except where the failure to be so qualified or in good standing possess would not reasonably be expected to result in have a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower and each LC Subsidiary of this Agreement and the Notes (i) are within the Borrower’s 's and such LC Subsidiary's respective corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's or any LC Subsidiary's charter or by-laws or (yii) law or any material contractual restriction binding on or affecting the Borrower or, to the knowledge of the Borrower, or any other contractual restriction binding on the BorrowerLC Subsidiary or their respective properties. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower or each LC Subsidiary of this Agreement or the NotesAgreement. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute is the legal, valid and binding obligations obligation of the Borrower and each LC Subsidiary enforceable against the Borrower and each LC Subsidiary in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar other laws of general application relating to or limiting affecting the enforcement of creditors' rights generally and general principles of equity (regardless of whether considered in a proceeding in equity or by equitable principles relating to enforceabilityat law). (ie) The consolidated Consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30January 29, 20132000, and the related Consolidated statements of income and cash flows retained earnings of the Borrower and its Consolidated Subsidiaries for the fiscal year Fiscal Year then ended, certified by Deloitte & Touche LLP, copies of which have been furnished to the Administrative Agenteach Lender, fairly present the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since January 29, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132000, there has been no material adverse change in the business, condition (financial or otherwise) ), operations, properties or results of operations prospects of the Borrower and its Subsidiaries, Subsidiaries taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the best of Borrower’s 's knowledge, threatened) threatened action or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that has a reasonable probability (itaking into account the exhaustion of all appeals and the assertion of all defenses) would have of having a material adverse effect on the business, condition (financial Material Adverse Effect or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) which purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteAgreement. (g) No Following the application of the proceeds of each Advance, not more than 25 percent of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a Consolidated basis) which are subject to any Loan will be used directly restriction on Liens set forth in this Agreement or indirectly for in any agreement or instrument between the purpose Borrower and any Lender or any Affiliate of purchasing or carrying margin stock (any Lender relating to Debt and within the meaning scope of Regulation U issued by the Board Section 8.01(d) will consist of Governors of the Federal Reserve System)Margin Stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither Neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an "investment company," or an "affiliated person" of, or a company “controlled” by "promoter" or "principal underwriter" for, an "investment company”, within the meaning of ," as such terms are defined in the Investment Company Act of 1940, as amended. (ki) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or Set forth on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities Schedule VII hereto is a complete and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries areaccurate list, as of the Closing Datedate hereof, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each all Plans of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of Subsidiaries. Neither the Borrower nor any ERISA Affiliate is a party or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoingto, or has any other applicable sanctions authority (collectivelyobligation to make payments, “Sanctions”to, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)any Multiemployer Plan. (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Gap Inc)

Representations and Warranties of the Borrower. The ---------------------------------------------- Borrower represents and warrants, warrants as of the Effective Date (other than with respect and from time to paragraph (l)) and time thereafter as of the Closing Date, required under this Agreement as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Delaware. The Borrower and each of the respective states in which its principal operating facilities Significant Subsidiaries are located, except, with respect to this clause (ii) only, in states where the failure to be so duly qualified or and in good standing as foreign corporations authorized to do business in each jurisdiction (other than the respective jurisdictions of their incorporation) in which the nature of their respective activities or the character of the properties they own or lease make such qualification necessary and in which the failure so to qualify would not reasonably be expected to result in have a Material Adverse Effectmaterial adverse effect on the financial condition or operations of the Borrower and its subsidiaries, taken as a whole. (b) The execution, delivery and performance by the Borrower of this Agreement and each of the Notes (i) Notes, if any, delivered hereunder are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-by- laws or (yii) law any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any material contractual restriction binding on the Borrower or, to the knowledge of or affecting the Borrower, any other contractual restriction binding on the Borrower. (c) No Disney or ABC; no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This , if any; and this Agreement is and each of the Notes (Notes, when delivered hereunder) have been duly executed and delivered and constitute , will be the legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to applicable bankruptcy, reorganization, insolvency, reorganization, moratorium or similar laws relating to or limiting affecting creditors' rights generally or by equitable and general principles relating to enforceabilityof equity. (ic) The Borrower's most recent annual report on Form 10-K containing the consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30, 2013subsidiaries, and the related consolidated statements of income and of cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then endedsubsidiaries, copies of which have been furnished to the Administrative Agenteach Lender pursuant to Section 5.01(e)(ii), fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries subsidiaries as at the date of such date balance sheet and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (iid) The unaudited consolidated balance sheets of There is no pending or, to the Borrower's knowledge, threatened claim, action or proceeding affecting the Borrower and or any of its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of subsidiaries which have been furnished could reasonably be expected to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with adversely affect the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiariessubsidiaries, taken as a whole, as shown on or which could reasonably be expected to affect the consolidated balance sheet as legality, validity or enforceability of such date this Agreement; and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s 's knowledge, threatened) action or proceeding against the Borrower or any and each of its Subsidiaries before subsidiaries have complied, and are in compliance, with all applicable laws, rules, regulations, permits, orders, consent decrees and judgments, except for any courtsuch matters which have not had, governmental agency or arbitratorand would not reasonably be expected to have, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, financial condition (financial or otherwise) or results of operations of the Borrower and its Subsidiariessubsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (he) The Borrower and its Subsidiaries the ERISA Affiliates have filed (or have obtained extensions of the time by which they not incurred and are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Planincur any material liability in connection with their Single Employer Plans or Multiple Employer Plans, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, than ordinary liabilities for benefits; neither the Borrower nor any of its Subsidiaries ERISA Affiliate has incurred or is reasonably expected to incur any liability, other than premiums payable material withdrawal liability (as defined in the ordinary course Part I of business, Subtitle E of Title IV of ERISA) to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The ; and no Multiemployer Plan of the Borrower or any ERISA Affiliate is not an “investment company”, reasonably expected to be in reorganization or a company “controlled” by an “investment company”to be terminated, within the meaning of the Investment Company Act Title IV of 1940, as amendedERISA. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Walt Disney Co/)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Each of the Borrower (i) and each Significant Subsidiary is a corporation duly organized and incorporated, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states jurisdiction in which its principal operating facilities are located, except, with respect it is incorporated and is duly qualified to this clause (ii) only, do business in states where the failure to be so qualified or and is in good standing under the laws of each other jurisdiction where the nature of its business or the nature of property owned or used by it makes such qualification necessary (except where failure to so qualify would not reasonably be expected to result in have a Material Adverse Effectmaterial adverse affect on the financial condition, operations or properties of the Borrower and its Subsidiaries, taken as a whole). (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) any law or any material contractual restriction binding on or affecting the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borroweror its properties. (c) No authorization or approval or other action by, and no notice to or filing with, with any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or Agreement, other than the NotesSEC Order, which has been duly issued and is in full force and effect, and the Revised Advance Confidential Notice, which will be made promptly upon execution of this Agreement. (d) This Agreement and the Notes (when delivered hereunder) have has been duly executed and delivered by the Borrower and constitute is, and any promissory note when delivered pursuant to Section 2.01(b) will be, the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated Consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30of December 31, 20132004, and the related Consolidated statements of income and cash flows retained earnings of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, and the Consolidated balance sheets of the Borrower and its Subsidiaries as of September 30, 2005, and the related Consolidated statements of income and retained earnings of the Borrower and its Subsidiaries, copies of each of which have been furnished to the Administrative Agenteach Lender, fairly present (subject, in the consolidated case of such financial statements dated September 30, 2005, to year end adjustments) the financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132004, there has been no material adverse change in the businessfinancial condition, condition (financial operations or otherwise) or results of operations properties of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There Except as described in the reports and registration statements that the Borrower, CP&L, FPC and Florida Power have filed with the Securities and Exchange Commission prior to the date of this Agreement, there is no pending (or, to the Borrower’s knowledge, threatened) or threatened action or proceeding against affecting the Borrower or any of its Subsidiaries Subsidiary before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on may materially adversely affect the businessfinancial condition, condition (financial operations or otherwise) or results of operations properties of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan Advance will be used directly or indirectly to acquire any security in any transaction that is subject to Sections 13 and 14 of the Exchange Act. (h) No proceeds of any Advance will be used in connection with any Hostile Acquisition. (i) The Borrower is not engaged in the business of extending credit for the purpose of purchasing buying or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to buy or carry any margin stock or to extend credit to others for the purpose of buying or carrying any margin stock. (j) Following application of the proceeds of each Borrowing, not more than 5% of the value of the assets (either of the Borrower only or of the Borrower and the Subsidiaries on a Consolidated basis) subject to the provisions of Section 5.02(a) or 5.02(e) will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (hk) The Borrower and its Subsidiaries have filed (No Termination Event has occurred or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) is reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, occur with respect to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (jl) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (km) No statementThe Borrower is in substantial compliance with all applicable laws, informationrules, reportregulations and orders of any governmental authority, representationthe noncompliance with which would materially and adversely affect the business or condition of the Borrower, such compliance to include, without limitation, substantial compliance with ERISA, Environmental Laws and paying before the same become delinquent all material taxes, assessments and governmental charges imposed upon it or warranty upon its property, except to the extent compliance with any of the foregoing is then being contested in good faith by appropriate legal proceedings. (n) The financial statements described in Section 4.01(e), copies of which have been made available by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of and the Borrower Lenders in connection with this Agreement or contained (the “Disclosed Information”), was (and all written information furnished in any filing made the future by the Borrower to the Administrative Agent and the Lenders in connection with this Agreement will be) complete and correct in all respects material to the Securities and Exchange Commission (taken as a whole with all other informationcreditworthiness of the Borrower when delivered. As of the date hereof, including amendments and supplements then filed with the Securities and Exchange Commission) contains Disclosed Information does not contain any untrue statement of a material fact or omits any omit to state a material fact required to be stated therein or necessary to make the statements therein, contained therein not misleading in light of the circumstances under which they were made, not misleading. (lo) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, is Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Progress Energy Inc)

Representations and Warranties of the Borrower. The As to Each --------------------------------------------------------- Mortgage Loan. It is understood and agreed by Borrower that as a material ------------- inducement to Lender to make each Advance, the Borrower represents and warrants, warrants to the Lender as of the Effective each Advance Date (other than with respect to paragraph (l)) and as each Mortgage Loan the accuracy of each of the Closing Date, as followsfollowing: (a) The Borrower (i) Note is a corporation duly organized and validly existing under "negotiable instrument" as defined in the laws Uniform Commercial Code, the Borrower is a "holder-in-due-course" of each Note as defined in the Uniform Commercial Code, the Borrower is the sole owner of the State of New Jersey Mortgage Loan and (ii) is duly qualified has the right to pledge, assign and transfer the Mortgage Loan and its related Collateral to the Lender. The Note, Mortgage and other documents executed by the Mortgagor relating to the Mortgage Loans were complete when so executed, with all blanks and missing information inserted and, if applicable, any completions after execution were authorized by the Mortgagor. The Borrower has not sold, assigned or otherwise transferred any right or interest in good standing under or to the laws of New Jersey and each Mortgage Loan or any of the respective states in which its principal operating facilities are locatedCollateral and has not pledged the Mortgage Loan or any of the Collateral as collateral for any loan or obligation of Borrower or other purpose, except, with respect except pursuant to this clause (ii) only, in states where Agreement. The pledge of the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery Mortgage Loan and performance Collateral by the Borrower of this Agreement to Lender validly pledges such Mortgage Loan and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, Collateral to Lender free and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds clear of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxespledges, assessments and governmental charges which have become dueliens, except such taxesclaims, if anyencumbrances, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Planmortgages, andcharges, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements exceptions and/or security interests of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.third parties;

Appears in 1 contract

Sources: Mortgage Warehouse Loan and Security Agreement (Mpel Holdings Corp)

Representations and Warranties of the Borrower. The Borrower hereby represents and warrantswarrants to the Lender, as of that on the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as follows: (a) 6.1. The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Israel and each of has the respective states in which power to own its principal operating facilities are located, except, with respect properties and to this clause (ii) only, in states where the failure carry on its business as now conducted and as proposed to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectconducted. (b) 6.2. The execution, delivery execution and performance by the Borrower of this Agreement and the Notes other Loan Documents (ia) are within the Borrower’s corporate powerspower and authority, (b) have been duly authorized by all necessary corporate action, approvals and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge requirements of the Borrower, and (c) do not or will not, conflict with or breach or constitute default of any agreement, contract or other contractual restriction binding on instrument to which the Borrower is party, or any law, regulation, order, judgment, writ, injunction, license or permit, applicable to the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance 6.3. The execution by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, other Loan Documents will result in valid and legally binding obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium the terms and provisions hereof and thereof. No third party consents or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown authorizations are required on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf part of the Borrower in connection with the consummation of the transactions contemplated by this Agreement or contained in any filing made by the Borrower with other Loan Documents or its obligations hereunder or thereunder, save for the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingJLL Consent. 6.4. The Collateral is free and clear from any restrictions, covenants, mortgages, pledges, liens, encumbrances, attachments, assignments, title retentions or other third party rights or security interests (l) an “Encumbrance”), other than the JLL Security Interest up to the Senior Cap. 6.5. The Borrower and does not have any debts or liabilities beyond its Subsidiaries are, ability to pay as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”they become due, and the associated Borrower has not and is not contemplating filing for bankruptcy, liquidation, insolvency or for relief under the provisions of any applicable insolvency laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of nor is the Borrower in any situation that would reasonably cause it to file for bankruptcy, liquidation, insolvency or relief under any of its Subsidiaries applicable insolvency laws. No liquidator or their respective directorsreceiver has been appointed on behalf of, officers or employees orfor, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.. 

Appears in 1 contract

Sources: Loan Agreement (Cryolife Inc)

Representations and Warranties of the Borrower. The Borrower hereby represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as followswarrants that: (a) The Borrower (i) it is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Delaware and each of has all requisite power and authority and the respective states in which legal right to execute and deliver, and to perform its principal operating facilities are locatedobligations under, except, with respect this Trust Agreement and has taken all necessary corporate action to this clause (ii) only, in states where authorize the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower.Trust Agreement; (cb) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Trust Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have has been duly executed and delivered by the Borrower and constitute the constitutes a legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms, except as the enforceability hereof may be limited by bankruptcy, insolvency, reorganization, reorganization or moratorium or other similar laws relating to or limiting the enforcement of creditors' rights generally or and by general equitable principles relating to enforceabilityprinciples.; (ic) The consolidated balance sheets of neither the Borrower execution and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made delivery by the Borrower of this Trust Agreement nor compliance with the Securities terms and Exchange Commission on provisions hereof by the Borrower will conflict with or before October 5, 2014result in a breach of or Default under, or (ii) purports require any consent under, or give rise to affect the legalityany acceleration, validityprepayment, binding effect repurchase or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge redemption obligation of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance withthe Parent or any Subsidiary under the respective certificates of incorporation or by-laws (or other organizational documents) of the Borrower, the Parent or any Subsidiary, or any applicable provisions law or regulation, or any order, writ, injunction or decree of ERISAany court or governmental authority or agency, or any agreement or instrument to which the Borrower, the Code and Parent or any other Federal Subsidiary is a party or State law. Without limiting by which it is bound or to which it is subject, or result in the foregoing, neither the Borrower nor creation or imposition of any Lien upon any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan revenues or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations assets of the Borrower or any Subsidiary (except for the Liens created pursuant to the Security Documents) pursuant to the terms of its Subsidiaries), except any such non-compliance that, individually agreement or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.instrument; and (id) None of the Borrower or any of its Subsidiaries or any of their respective directorshas obtained all authorizations, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”approvals and consents of, and the associated lawshas made all filings and registrations with, rules, regulations any governmental or regulatory authority or agency and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) third party necessary for the purpose execution, delivery and performance by it of financing any activities this Trust Agreement and for the validity or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawsenforceability hereof.

Appears in 1 contract

Sources: Trust Agreement (Pf Net Communications Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and incorporated, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey State of Florida, has the requisite power and each of the respective states in which authority to own its principal operating facilities are locatedproperties and assets and to carry on its business as now conducted, except, with respect and is duly qualified to this clause (ii) only, in states where the failure to be so qualified or do business as a foreign corporation and is in good standing in each jurisdiction in which failure to so qualify would not reasonably be expected to result in have a Material Adverse Effectmaterial adverse effect on the transaction contemplated hereby. (b) The execution, delivery and performance by the Borrower of this Agreement Agreement, the Note and each other Loan Document to which the Notes (i) are within the Borrower’s corporate powers, Borrower is a party have been duly authorized by all necessary corporate action, action and do not and will not: (i) require any consent or approval of the share-holders of the Borrower not already obtained; (ii) do not contravene (x) the Borrower’s charter 's governing documents; (iii) violate any provision of any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or by-laws award presently in effect having applicability to the Borrower; (iv) result in a breach of or (y) law constitute a default under any indenture or loan or credit agreement or any material contractual restriction binding on other agreement, lease or instrument to which the Borrower is a party or by which it or its properties may be bound or affected; or (v) result in, or require, the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature (other than arising under a Loan Document) upon or with respect to the knowledge any of the Borrower, any other contractual restriction binding on properties now owned or hereafter acquired by the Borrower; and the Borrower is not in default under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement any Loan Document to which it is or the Noteswill be a party. (d) This Agreement is, and each other Loan Document to which the Notes (Borrower will be a party when delivered hereunder) have been duly executed and delivered and constitute the hereunder will be, legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as and there has not occurred any action or inaction of Lender which Borrower believes may (i) be limited by bankruptcyactionable against Lender, insolvencyor (ii) give rise to a defense, reorganizationto payment hereunder or under the Note for any reason, moratorium including without limitation, commission of a tort or similar laws relating to violation of any contractual duty or limiting creditors’ rights generally or by equitable principles relating to enforceabilityduty implied at law. (ie) The consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30of December 31, 20131997, and the related consolidated statements of income operations, shareholders' equity and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, reviewed by Xxxxxx Xxxxxxxx & Co., LLP, copies of which have been furnished to the Administrative AgentLender, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated its results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended on such date, all in accordance with generally accepted accounting principles principles, consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower , and its Consolidated Subsidiaries as of June 30since March 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, 1998 there has been no material adverse change in the business, such condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedoperations. (f) There is no pending (orpending, or to the Borrower’s best of its knowledge, threatened) threatened action or proceeding against affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in arbitrator which there is likely to be an adverse decision that (i) would have a material adverse effect on may materially adversely affect the business, financial condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any NoteBorrower. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) The Borrower There are no recorded and/or perfected mortgages, deeds of trust, liens, security interests or, to the best of its knowledge, other charges and its Subsidiaries have filed encumbrances (including liens or have obtained extensions the retained titles of conditional vendors) of any nature whatsoever on any properties of the time by which they are required to fileBorrower other than those permitted under Section 5.02(a) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effecthereof. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”has filed all tax returns (federal, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (kstate and local) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary filed and has paid all taxes shown thereon to make the statements thereinbe due, in light of the circumstances under which they were made, not misleading. (l) The Borrower including interest and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoingpenalties, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”)provided adequate reserves for payment thereof. (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Revolving Credit and Loan Agreement (Kos Pharmaceuticals Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the State of Nevada and is duly qualified to do business and is in good standing as a foreign corporation under the laws of each of the respective states state in which the ownership of its principal operating facilities are locatedproperties or the conduct of its business makes such qualification necessary, except, with respect to this clause (ii) only, in states except where the failure to be so qualified or in good standing would not reasonably be expected to result in have a Material Adverse Effect, and each Material Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized. (b) The execution, delivery and performance by the Borrower of this Agreement each Loan Document, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, powers and have been duly authorized by all necessary corporate action, . Each Loan Document has been duly executed and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on delivered by the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or any Loan Document, other than such Governmental Approvals that have been duly obtained and are in full force and effect, which as of the Notesdate hereof are as follows: Order issued August 31, 2015 by the PUCN in Docket No. 15-06041. (d) This Agreement The execution, delivery and performance by Borrower of the Notes Loan Documents will not (when delivered hereunderi) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with, or result in a breach of or constitute a default under, any contract, agreement, indenture or instrument to which the Borrower or any of its Material Subsidiaries is a party or by which any of its or their respective properties is bound or (iii) result in the creation or imposition of any Lien on the property of Borrower or any of its Material Subsidiaries other than Permitted Liens and Liens required under this Agreement, except to the extent such conflict, breach or default referred to in the preceding clause (ii), individually or in the aggregate, would not reasonably be expected to have been duly executed and delivered and constitute a Material Adverse Effect. (e) Each Loan Document is the legal, valid and binding obligations obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or bankruptcy and similar laws relating to or limiting affecting the enforcement of creditors’ rights generally or and by the application of general equitable principles relating to enforceabilityprinciples. (if) The Borrower and each Material Subsidiary are in compliance with all Applicable Laws (including Environmental Laws), except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect. (g) There is no action, suit, proceeding, claim or dispute pending or, to the Borrower’s knowledge, threatened against or affecting the Borrower or any of its Material Subsidiaries, or any of its or their respective properties or assets, before any Governmental Authority that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. There is no injunction, writ, preliminary restraining order or any other order of any nature issued by any Governmental Authority directing that any material aspect of the transactions expressly provided for in any of the Loan Documents not be consummated as herein or therein provided. (h) The consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132017, and the related consolidated statements of income and income, cash flows of the Borrower and its Consolidated Subsidiaries stockholders’ equity for the fiscal year then endedended on such date, certified by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Administrative AgentAgent and each Lender, present fairly present in all material respects the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date date, and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. . All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as may be disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve Systemtherein). (hi) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxesSince December 31, assessments and governmental charges which have become due2017, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) no event has occurred that could reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”and each Material Subsidiary have filed or caused to be filed all U.S. Federal and other material tax returns that are required by Applicable Law to be filed, and have paid all taxes shown to be due and payable on said returns or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty on any assessments made by the Borrower in this Agreement or furnished to the Administrative Agent against it or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property property; other than (including compliance with all applicable Environmental Laws i) with respect to any real estate asset taxes the amount or governing its business validity of which is currently being contested in good faith by appropriate proceedings and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or which reserves in conformity with GAAP have been provided on the operations books of the Borrower or any of its Subsidiaries)the applicable Material Subsidiary, except such non-compliance thatas the case may be, individually or in (ii) to the aggregate, would extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect. (ik) None No ERISA Event has occurred other than as would not, either individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. There are no actions, suits or claims pending against or involving a Pension Plan (other than routine claims for benefits) or, to the knowledge of the Borrower or any of its Subsidiaries ERISA Affiliates, threatened, that would reasonably be expected to be asserted successfully against any Pension Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate to have a Material Adverse Effect. No lien imposed under the Internal Revenue Code or ERISA on the assets of the Borrower or any of its ERISA Affiliates exists or is likely to arise with respect to any Pension Plan. The Borrower and each of its Subsidiaries have complied with foreign law applicable to its Foreign Plans, except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect. (l) The Borrower is not engaged in the business of extending credit for the purpose of buying or carrying Margin Stock, and no proceeds of any Loan will be used to extend credit to others for the purpose of buying or carrying any Margin Stock. Following the application of the proceeds of any Extension of Credit, not more than 25% of the value of the assets of the Borrower and the Material Subsidiaries that are subject to the restrictions of Section 5.02(a) or (c) constitute Margin Stock. (m) Neither the Borrower nor any Subsidiary is an “investment company” or a company “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended. (n) There are no claims, liabilities, investigations, litigation, notices of violation or liability, administrative proceedings, judgments or orders, whether asserted, pending or threatened, relating to any liability under or compliance with any applicable Environmental Law, against the Borrower or any Material Subsidiary or relating to any real property currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary, that would reasonably be expected to have a Material Adverse Effect. No Hazardous Materials have been or are present or are being spilled, discharged or released on, in, under or from property (real, personal or mixed) currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary in any quantity or manner violating, or resulting in liability under, any applicable Environmental Law, which violation or liability would reasonably be expected to have a Material Adverse Effect. (o) No written statement or information furnished by or on behalf of the Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or delivered pursuant hereto, in each case as of the date such statement or information is made or delivered, as applicable, contained or contains, any material misstatement of fact or intentionally omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading. (p) Each Material Subsidiary as of the date hereof is set forth on Schedule III. (q) The Borrower has implemented and maintains in effect policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers orand employees with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and, to the knowledge of the Borrower, employeestheir respective officers, agentsdirectors and employees and their respective agents that will act in any capacity in connection with or benefit from the credit facility established hereby, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other are in compliance with Anti-Corruption Laws and applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) in all material respects. None of the Borrower or any Subsidiary is a Sanctioned Person. No Borrowing or Letter of its Subsidiaries Credit, use of proceeds or their respective directors, officers other transaction contemplated by this Agreement will violate any Anti-Corruption Law or employees or, applicable Sanctions. (r) At all times prior to the knowledge Collateral Release, the General and Refunding Mortgage Indenture is effective to create in favor of the Indenture Trustee, for the ratable benefit of all Holders of Securities (as defined in the General and Refunding Mortgage Indenture), a legal, valid, binding, subsisting and enforceable Lien on and security interest in the Mortgaged Property and the proceeds thereof, subject to applicable Debtor Relief Laws, and such Lien constitutes a fully perfected Lien on, and security interest in, all right title and interest of the grantors thereof in such Mortgaged Property and the proceeds thereof, in each case prior to and superior in right to any other Person subject only to Permitted Liens (as defined in the General and Refunding Mortgage Indenture). (s) At all times prior to the Collateral Release, the General and Refunding Mortgage Bonds, when executed by the Borrower and authenticated by the Indenture Trustee in accordance with the General and Refunding Mortgage Indenture and delivered to the Administrative Agent in accordance with the terms hereof, will constitute valid and binding obligations of the Borrower, agentsenforceable against the Borrower in accordance with their terms, advisors or Affiliates acting for or on behalf except as the enforceability thereof may be limited by applicable Debtor Relief Laws. At all times prior to the Collateral Release, the Borrower has all requisite corporate power and authority to issue and deliver the General and Refunding Mortgage Bonds in accordance with and upon the terms and conditions set forth herein. (t) At all times prior to the Collateral Release, the General and Refunding Mortgage Bonds secure the Obligations of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Lawshereunder, (y) have been duly and validly issued and are entitled to the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each security and benefits of the Borrower General and its Subsidiaries Refunding Mortgage Indenture. At all times prior to the Collateral Release, the General and Affiliates has instituted Refunding Mortgage Bonds are secured equally and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Lawsratably with, and Anti-Money Laundering Laws. only with, all other Securities (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result as defined in the Borrower or any Lender being in breach of any Sanctions Laws, (yGeneral and Refunding Mortgage Indenture) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate issued and outstanding under the USA PATRIOT Act or any Anti-Money Laundering LawsGeneral and Refunding Mortgage Indenture.

Appears in 1 contract

Sources: Credit Agreement (Pacificorp /Or/)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey the jurisdiction indicated at the beginning of this Agreement. The Borrower is duly qualified and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing as a foreign corporation authorized to do business in each jurisdiction (other than the jurisdiction of its incorporation) in which the nature of its activities or the character of the properties it owns or leases makes such qualification necessary and in which the failure so to qualify would not reasonably be expected to result in have a Material Adverse Effectmaterially adverse effect on the financial condition or operations of the Company and its Subsidiaries taken as a whole. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) of the Borrower are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, action and (ii) do not contravene (xi) the Borrower’s charter or by-laws (or equivalent constitutive documents) or (yii) law any law, rule, regulation or contractual restriction in any material contractual restriction binding on the Borrower contract or, to the knowledge of the BorrowerChief Financial Officer of the Company, any other contractual restriction contract the breach of which would limit the ability of the Borrower to perform its obligations under this Agreement or the Notes, binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any such governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes delivered by it. (d) This Agreement is, and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the hereunder will be, legal, valid and binding obligations of the Borrower party thereto enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (ie) The consolidated balance sheets Consolidated financial statements of the Borrower Company and its Consolidated Subsidiaries as at September 30of December 31, 2013, 2011 and the related Consolidated statements of income income, Consolidated balance sheets, Consolidated statements of shareholders’ equity and Consolidated statements of cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to reported on by Ernst & Young LLP, and the Administrative Agent, fairly present the consolidated Consolidated financial condition statements of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower Company and its Consolidated Subsidiaries as of June 3029, 2014 2012 and the related unaudited consolidated Consolidated statements of income income, Consolidated balance sheets, Consolidated statements of shareholders’ equity and Consolidated statements of cash flows for the six three months then ended and set forth in ended, duly certified by the Borrower’s Report on Form 10-Q for Chief Financial Officer of the quarter ended June 30, 2014, copies of which have been furnished to the Administrative AgentCompany, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent accordance with the financial statements referred to in clause (i) of this paragraph (e)GAAP, the consolidated financial position of the Borrower Company and its Consolidated Subsidiaries as of at such date dates and their consolidated results of operations and cash flows for the periods ended on such nine month period (subject to normal year-end adjustments). (iii) dates. Since September 30December 31, 20132011, there has been no material adverse change in the business, condition (financial or otherwise) position or results of operations of the Borrower Company and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the best of the Borrower’s knowledge, threatened) threatened action or proceeding against involving the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in (i) which there is likely to be an adverse decision that (i) would have a material adverse effect on materially adversely affect the business, financial condition (financial or otherwise) or results of operations of the Borrower Company and its Subsidiaries, Subsidiaries taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, whole or (ii) which purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Note. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by U), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the Board purpose of Governors of the Federal Reserve System)purchasing or carrying any margin stock. (h) The Borrower and its Subsidiaries have filed No termination or wind up of, withdrawal from, or other similar event with respect to a Pension Plan has occurred which could reasonably be expected to result in liability under Title IV of ERISA (or have obtained extensions other than with respect to premiums payable to the PBGC) or, solely with respect to Pension Plans not subject to Title IV of ERISA, any similar liability under applicable law (including, without limitation, employer debt under Section 75 of the time by which they are required to file) all United States Federal income tax returns Pensions Act 1995 (as modified)), and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxessuch liability, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to , would have a Material Adverse Effectmaterial adverse effect on the financial condition or results of operations of the Company and its Consolidated Subsidiaries, taken as a whole. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (kj) No statementTo the extent applicable, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf each of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower Company and its Subsidiaries is in compliance in all material respects with all applicable statutes(i) the Trading with the Enemy Act, regulations and orders ofas amended, and all applicable restrictions imposed by, all Governmental Authorities, in respect each of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations foreign assets control regulations of the Borrower United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended), and any other enabling legislation or any executive order relating thereto, and (ii) the Act, unless noncompliance with which would not materially adversely affect the business or financial condition of the Company and its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in taken as a Material Adverse Effectwhole. (i) None Neither the Borrower nor any of its Subsidiaries are subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) and (ii) no part of the proceeds of the Advances will be used, directly or indirectly, by the Borrower or any Subsidiary in violation of OFAC. (i) Neither the Borrower nor any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject in violation of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, anti-corruption law and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None no part of the proceeds of the Advances will be used, directly or indirectly, by the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged Subsidiary in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders amended (collectively, Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering LawsFCPA”). (iii) Each , unless in either case noncompliance with which would not materially adversely affect the business or financial condition of the Borrower Company and its Subsidiaries and Affiliates has instituted and maintained policiesSubsidiaries, procedures and taken as a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Lawswhole. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Coca-Cola Enterprises, Inc.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the jurisdiction of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectincorporation. (b) The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party, and the Notes (i) consummation of the transactions contemplated hereby and thereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s 's charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement Agreement, the Notes or the Notesany other Loan Document to which it is a party. (d) This Agreement has been, and each of the Notes (and each of the other Loan Documents to which it is a party when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes and each of the other Loan Documents to which it is a party when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ law affecting creditors rights generally or by equitable principles relating to enforceabilitygenerally. (ie) The consolidated balance sheets Audited Statements of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows Unaudited Statements of the Borrower and its Consolidated Subsidiaries for the fiscal year then endedBorrower, copies of each of which have been furnished to the Administrative Agenteach Lender, fairly present present, subject in the consolidated case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition condition, results of operations and cash flows of the Borrower relevant Persons and its Consolidated Subsidiaries entities, as at such date the dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such dateperiods therein indicated, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since March 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132001, there has been no material adverse change Material Adverse Change, except as shall have been disclosed or contemplated in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedSEC Reports. (f) There is no pending (oror threatened action, to the Borrower’s knowledgesuit, threatened) action investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its the Significant Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Detroit Edison Co)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws laws, (ii) applicable law or (yiii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or, other than as would not reasonably be expected to have a Material Adverse Effect, any other third party, is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as to the extent such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or and by equitable principles relating to enforceabilityprinciples. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132014, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, copies of which have been furnished to the Administrative Agenteach Lender, fairly present the consolidated Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30. Since December 31, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change Material Adverse Change other than as disclosed in any periodic report filed prior to the business, condition (financial or otherwise) or results of operations of date hereof by the Borrower with the Securities and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedExchange Commission. (f) There is no pending (or, to the knowledge of the Borrower’s knowledge, threatened) action threatened action, suit, investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would could be reasonably likely to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, Material Adverse Effect or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly Note or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors consummation of the Federal Reserve System)transactions contemplated hereby. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Credit Agreement (Celgene Corp /De/)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or (yii) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting affecting creditors’ rights generally or by general equitable principles relating to enforceabilityprinciples. (i) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132005, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of PricewaterhouseCoopers LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30, 2006, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the six months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to the Administrative Agenteach Lender, fairly present in all material respects, subject, in the consolidated case of said balance sheet as at June 30, 2006, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) Since December 31, 2005, there has been no Material Adverse Change. (iii) The unaudited consolidated balance sheets annual financial statements of each Insurance Subsidiary as at December 31, 2005, and the Borrower and its Consolidated Subsidiaries quarterly financial statements of each Insurance Subsidiary as of at June 30, 2014 and 2006, in each case as required to be flied with the related unaudited consolidated statements Insurance Regulatory Authority of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014jurisdiction of domicile of such Insurance Subsidiary, copies of which have been furnished to the Administrative Agenteach Lender, fairly presentpresent in all material respects, subject, in conformity which generally accepted accounting principles applied on a basis consistent with the case of said quarterly financial statements referred as at June 30, 2006, to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end audit adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, financial condition (financial or otherwise) or of such Insurance Subsidiary as at such dates and the results of operations of the Borrower operations, changes in capital and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as surplus and cash flow of such date and the related consolidated statement of net income Insurance Subsidiary for the fiscal year respective periods then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action threatened action, suit, investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency agency, Insurance Regulatory Authority or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would be reasonably likely to have a material Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the business, condition (financial Borrower or otherwise) or results any of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by of the Borrower with the Securities and Exchange Commission Disclosed Litigation from that described on or before October 5, 2014, Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (ki) No statement, The Information Memorandum and the other information, report, representation, or warranty made by the Borrower in this Agreement or exhibits and reports furnished to the Administrative Agent or any Lender by or on behalf of the Borrower or any other Borrower to the Agent or any Lender in connection with the negotiation and syndication of this Agreement or contained in any filing made by pursuant to the Borrower with the Securities and Exchange Commission (terms of this Agreement, taken as a whole with all other informationwhole, including amendments and supplements then filed with the Securities and Exchange Commission) contains did not contain any untrue statement of a material fact or omits any omitted to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under in which they were made, not misleading. (lj) The Borrower and its Subsidiaries areSchedule 4.01(j) lists with respect to each Insurance Subsidiary, as of the Closing Effective Date, after giving effect to the Acquisition and the making all of the Loans jurisdictions in which such Insurance Subsidiary holds licenses (including, without limitation, licenses or certificates of authority from relevant Insurance Regulatory Authorities), permits or authorizations to transact insurance and application of reinsurance business (collectively, the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of“Licenses”), and all applicable restrictions imposed by, all Governmental Authorities, indicates the type or types of insurance in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws which each such Insurance Subsidiary is permitted to be engaged with respect to any real estate asset each License therein listed. (i) No such License is the subject of a proceeding for suspension, revocation or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower limitation or any of its Subsidiariessimilar proceedings, (ii) there is no sustainable basis for such a suspension, revocation or limitation, and (iii) no such suspension, revocation or limitation is, to the Borrower’s knowledge, threatened by any relevant Insurance Regulatory Authority, that, in each instance under (i), except such non-compliance that(ii) and (iii) above, would individually or in the aggregate, would not reasonably be expected to result in have a Material Adverse Effect. (i) None of the Borrower or . No Insurance Subsidiary transacts any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be usedinsurance business, directly or indirectly, in any jurisdiction other than those listed on Schedule 4.01(j), where such business requires any license, permit or other authorization of an Insurance Regulatory Authority of such jurisdiction. (xk) As of the Effective Date, except as set forth on Schedule F to the financial statements for the purpose Insurance Subsidiaries for the fiscal year ending December 31, 2005 or as provided for or disclosed on the interim GAAP financial statements dated as of financing June 30, 2006, there are no material liabilities outstanding as of the Effective Date under any activities or business of or with Reinsurance Agreement to which any Person that at such time Insurance Subsidiary is the subject of any Sanctions, with or in any country or territory ceding party. Each Reinsurance Agreement to the extent that such country or territory which an Insurance Subsidiary is the subject ceding party and which is in effect on the Effective Date is in full force and effect on the Effective Date. Each Reinsurance Agreement to which an Insurance Subsidiary is the ceding party and which is in effect on the Effective Date is qualified as of any Sanctions, or in any other manner that reasonably would be expected the Effective Date under all applicable law to result receive the statutory credit assigned to such Reinsurance Agreement in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate relevant financial statements at the USA PATRIOT Act or any Anti-Money Laundering Lawstime prepared.

Appears in 1 contract

Sources: Credit Agreement (Everest Re Group LTD)

Representations and Warranties of the Borrower. The Borrower represents and warrants, warrants to the Lenders and the Agent that each of the following matters is true and correct as of the Effective execution date of this Agreement and the Drawdown Date (other than with respect to paragraph (l)) of Individual Loans and as if it is found out that such representations and warranties are not true on any later date, then immediately notify the Lenders and the Agent of such effect in writing and bear any and all Damages within the Closing Date, as followsrange of reasonable causation incurred by the Lenders or the Agent arising therefrom: (ai) The Borrower (i) is a corporation stock company duly organized incorporated and validly existing under the laws of the State of New Jersey and Japan; (ii) is duly qualified The Borrower does not fall under any of Items (a) through (i) of Paragraph (1) of Attachment 4 and has no relationship set forth in good standing under the laws any of New Jersey and each Items (a) through (e) of the respective states in which its principal operating facilities are located, except, with respect to this clause Paragraph (ii2) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectof Attachment 4. (iii) The Borrower has all necessary complete legal power and right to execute and perform this Agreement, and the execution and performance of this Agreement, and the transactions hereunder, are within the corporate purposes of the Borrower, and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the Articles of Incorporation and other internal company rules of the Borrower; (iv) The execution and performance of this Agreement, and the transactions hereunder, do not violate (a) any Laws and Ordinances which bind the Borrower, (b) The executionthe Articles of Incorporation and other internal company rules of the Borrower, delivery and performance by (c) any third-party contract to which the Borrower is a party or which binds the Borrower, or its assets; (v) The person who signed or attached his/her name and seal to this Agreement as the representative of the Borrower is authorized to sign or attach his/her name and seal to this Agreement as the representative of the Borrower by all procedures necessary pursuant to the Laws and Ordinances, the Articles of Incorporation or other internal company rules of the Borrower; (vi) Each of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the SSTL constitutes legal, valid and binding obligations of the Borrower Borrower, and is enforceable against the Borrower it in accordance with their respective its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related Borrower has not asserted to the contrary in writing; (vii) The financial statements of income (consolidated and cash flows non-consolidated) contained in the annual reports, semi-annual reports, quarterly reports, extraordinary reports, amended reports, etc. set forth in the Financial Instruments and Exchange Act (each of the Borrower and its Consolidated Subsidiaries for above documents shall be referred to as the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of “Reports”) prepared by the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all are duly prepared in accordance with generally accepted accounting principles consistently applied.and with the opinion of appropriateness after the audit (including the quarterly review) of the audit corporation; (iiviii) The unaudited consolidated balance sheets From the last day of the business year ending June 2018, no material change, which might cause a deterioration of the business, assets, or financial condition of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth described in the Borrower’s Report on Form 10-Q for Reports of that business year and which may materially affect the quarter ended June 30performance of the obligations under this Agreement, 2014has occurred; (ix) As of the execution date of this Agreement, copies of the Borrower is a company which have been furnished is required to submit annual securities reports (yuuka shouken houkoku teishutsu kaisha), and is a corporation that is required to obtain audit certificates as prescribed by the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause Financial Instruments and Exchange Act (iKin’yuu shouhin torihiki hou) of this paragraph (e)Japan, the consolidated financial position and which falls within any of the Borrower and its Consolidated Subsidiaries as items set out in Article 2, Paragraph 1 of such date and their consolidated results of operations and cash flows for such nine month period the Act on Specified Commitment Line Contract (subject to normal year-end adjustmentsTokutei yuushiwaku keiyaku ni kansuru houritsu). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (gx) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxeslawsuit, assessments and governmental charges which have become duearbitration, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoingadministrative procedure, or any other applicable sanctions authority (collectively, “Sanctions”, dispute has commenced or is actually and specifically threatened with respect to the associated laws, rules, regulations and orders, collectively, “Sanctions Law”).Borrower which will or may materially cause adverse effects on the performance of its obligations under this Agreement; and (iixi) None of the Borrower No Subordination Event has arisen, or any of its Subsidiaries or their respective directorsis likely to arise. Subordinated Syndicated Loan Agreement dated October 26, officers or employees or2018, to the knowledge for Takeda Pharmaceutical Company Limited Chapter 4 Obligations of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Subordinated Syndicated Loan Agreement

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, as follows: (a) The Borrower (i) is a corporation duly organized and validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and This Agreement, each of the respective states 2 New Amended and Restated Notes and all transactions contemplated herein and thereto have been duly and validly executed by the Borrower; the Borrower is authorized and has the power to enter into this Agreement and the 2 New Amended and Restated Notes and perform all of the transactions set forth herein altogether including, but not limited to, reducing the Conversion Price of the 2 New Amended and Restated Notes and this Agreement and the 2 New Amended and Restated Notes all constitute a valid binding obligation and agreement of the Borrower, enforceable against Borrower in which accordance with its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse Effectterms. (b) All necessary action has been taken by the Borrower including, but not limited to, by its Board of Directors and stockholders, if necessary, to authorize and effectuate all transactions set forth in this Agreement. (c) No consents, approvals, permits and/or authorizations is required by any governmental and/or regulatory body including, but not limited to, FINRA, the SEC and/or Nasdaq not already obtained by the Borrower to effectuate the transactions set forth in this Agreement and neither the execution, delivery of and the performance of the Borrower of the transactions contemplated by this Agreement, the 2 New Amended and Restated Notes nor the effectuation of the transactions disclosed herein or therein will result in (or with the passage of time could result in), an Event of Default, a default, breach, violation and/or an event of default of (i) any loan, instrument and/or other agreement that the Company and/or its Subsidiaries are a party to and/or any of their respective assets and/or properties are bound by or subject to, (ii) the bylaws or other charter documents of the Borrower and/or its Subsidiaries and/or (iii) result in the violation of any law; rule and/or regulation of any federal, state and/or regulatory body including, but not limited to, the SEC, FINRA and/or Nasdaq. (d) The issuance of the 2 New Amended and Restated Notes and all shares of Common Stock issuable upon conversion of the 2 New Amended and Restated Notes (the “Conversion Shares”), are exempt (or will be with respect to the Conversion Shares), from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) pursuant to Rule 506 of Regulation D and/or Section 4(2) thereof; and the issuance of the Conversion Shares when issued upon conversion of the 2 New Amended and Restated Notes, will vest in the Lender sole and exclusive title to such securities free from all Liens, encumbrances and/or other clouds on title and such securities will be when issued, fully paid, validly issued and non-assessable and not subject to any pre-emptive rights, rights of first refusal, or other similar rights. (e) The execution, delivery and performance by the Borrower of this Agreement and the Notes transactions contemplated hereby by the Borrower, (i) are within the Borrower’s corporate powers, (ii) have been duly authorized by all necessary corporate action, and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and and/or its Subsidiaries are, as of the Closing Date, after giving effect shareholders to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiariesextent required by law), except such non-compliance that(iii) have received all necessary and/or required governmental, individually or in the aggregate, would not reasonably regulatory and other approvals and consents (if any shall be expected to result in a Material Adverse Effect. (irequired) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions LawsBorrower, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be useddo not and shall not contravene or conflict with any provision of, directly or indirectlyrequire any consents under (a) any law, rule, regulation or ordinance, (xb) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.Borrower’s organizational documents; and/or

Appears in 1 contract

Sources: Bridge Financing Agreement (Intercloud Systems, Inc.)

Representations and Warranties of the Borrower. The Borrower represents and warrants, as of the Effective Date (other than with respect to paragraph (l)) and as of the Closing Date, warrants as follows: (a) The Borrower (i) is a corporation duly organized and organized, validly existing under the laws of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each the State of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectDelaware. (b) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (xi) the Borrower’s charter or by-laws or laws, (yii) law or (iii) any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on or affecting the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the NotesNotes to be delivered by it, except to the extent that any such authorization, approval, action, notice or filing has been completed or is immaterial. (d) This Agreement has been, and each of the Notes (to be delivered by it when delivered hereunder) hereunder will have been been, duly executed and delivered by the Borrower. This Agreement is, and constitute each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by subject to (i) bankruptcy, insolvency, reorganization, moratorium or and other similar laws relating to of general application affecting the rights and remedies of creditors and (ii) general principles of equity, regardless of whether applied in proceedings in equity or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law. (ie) The consolidated Consolidated balance sheets sheet of the Borrower and its Consolidated Subsidiaries as at September 30December 31, 20132011, and the related Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of PricewaterhouseCoopers LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2012, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished or made available to the Administrative Agenteach Lender, fairly present present, in all material respects, subject, in the consolidated case of said balance sheet as at March 31, 2012, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments and the absence of footnotes, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30. Since December 31, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 20132011, there has been no material adverse change Material Adverse Change (other than as disclosed in the businessBorrower’s filings with the Securities and Exchange Commission, condition (financial or otherwise) or results of operations of including on forms 00-X, 00-X, 0-X, and DEF 14A filed prior to the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then endedEffective Date). (f) There is no pending (or, to the knowledge of the Borrower’s knowledge, threatened) action threatened action, suit, investigation, litigation or proceeding against proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision arbitrator that (i) would reasonably be expected to have a material adverse effect on the business, condition Material Adverse Effect (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except other than as disclosed in the Borrower’s filings made by the Borrower with the Securities and Exchange Commission Commission, including on or before October 5forms 00-X, 201400-X, 0-X, and DEF 14A filed prior to the Effective Date) or (ii) purports to affect the legality, validity, binding effect validity or enforceability of this Agreement or any NoteNote or the consummation of the transactions contemplated hereby. (g) No proceeds The Borrower is not engaged in the business of any Loan will be used directly or indirectly extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in violation of Regulation U issued by the Board of Governors of the Federal Reserve System. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended, that is required to register as an “investment company” under the Investment Company Act of 1940, as amended. (ki) No statement, Neither the Information Memorandum nor any other information, report, representation, exhibit or warranty made by the Borrower report furnished in this Agreement or furnished to the Administrative Agent or any Lender writing by or on behalf of the Borrower to the Agent or any Lender in connection with the negotiation and syndication of this Agreement or contained in any filing made by pursuant to the Borrower with the Securities and Exchange Commission (terms of this Agreement, taken as a whole with all other informationwhole, including amendments and supplements then filed with the Securities and Exchange Commission) contains contained any untrue statement of a material fact or omits any omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, made therein not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws ; provided that with respect to any real estate asset projected financial information or governing its business other forward-looking statement, the Borrower represents only that such information or statement was prepared in good faith based on assumptions believed by the Borrower to be reasonable at the time, it being recognized by the Agent and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, or any other applicable sanctions authority (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None of the Borrower or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent Lenders that such country projections as to future events and other forward-looking statements are not to be viewed as facts and that actual results during the period or territory is the subject of any Sanctions, periods covered thereby may differ from such projected results or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Antiforward-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawslooking statements.

Appears in 1 contract

Sources: Credit Agreement (Yahoo Inc)

Representations and Warranties of the Borrower. The In order to induce the Lender to provide the Loan, Borrower represents makes the following representations and warrantswarranties to the Lender. Such representations and warrantees shall be unaffected by any separate inquiries, as credit and/or security investigation made by the Lender prior to or after execution of this Agreement and shall survive the closing of the Effective Date (other than with respect to paragraph (l)) and as transactions contemplated hereby. Any material misrepresentation shall be grounds for immediate termination at the sole discretion of the Closing Date, as followslender: (a) The a. Borrower (i) has all requisite power and authority to enter into this Agreement and to carry out the transactions contemplated hereby [Borrower Board of Directors minutes explicitly authorizing the transactions and execution by the signatory below is a corporation duly organized attached). b. Borrower warrants and validly existing under represents that it is not now insolvent, bankrupt, or contemplating bankruptcy, that there are no claims filed or to it's knowledge threatened against Borrower, whether judged with or without merit by the laws Borrower, and that there are no other impediments to the sale or transfer of the State of New Jersey and (ii) is duly qualified and in good standing under the laws of New Jersey and each of the respective states in which its principal operating facilities are located, except, with respect to this clause (ii) only, in states where the failure to be so qualified or in good standing would not reasonably be expected to result in a Material Adverse EffectStock. (b) c. The execution, execution and delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, Collateral to be assigned and (ii) do not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower or, to the knowledge of the Borrower, any other contractual restriction binding on the Borrower. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance delivered by the Borrower of this Agreement are not subject to recall, restriction on voting, use, or the Notes. (d) other limitations. d This Agreement and the Notes (Agreement, when delivered hereunder) have been duly executed and delivered and delivered, will constitute the legala valid binding agreement, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective the terms, except such as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar other laws relating to or limiting affecting creditors' rights generally or by equitable principles relating to enforceabilitygenerally. (i) The consolidated balance sheets of e. Neither the Borrower execution and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability delivery of this Agreement to be executed and delivered by Borrower pursuant hereto, nor the consummation by Borrower of the transaction contemplated hereby, will require any authorization, consent, approval, exemption or any Noteother action by, or notice to, any governmental entity. (g) No proceeds of any Loan will be used directly f. Borrower does not have material tax deficiencies, federal, state, foreign, county, local or indirectly for other that would or could affect the purpose of purchasing solvency, financial status of, or carrying margin stock (within otherwise compromise Borrower in its ability to assign the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)Collateral Stock. (h) The Borrower and its Subsidiaries have filed (or have obtained extensions g. To the best of the time by which they are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, and, to the knowledge of the Borrower, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with's knowledge, the applicable provisions information supplied by Borrower to lender contains no untrue statement of ERISAmaterial fact or omits or shall omit a material fact, the Code which would make such statements misleading. All statements and any other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or information contained in any filing certificate, instrument, schedule or document delivered by Borrower shall be deemed representations and warranties made by borrower. Borrower shall bear the Borrower responsibility for complying with the all U.S. Securities and Exchange Commission (taken "SEC") rules and regulations and for making all appropriate disclosures to the SEC and other regulatory bodies in the Drifted States, related to the issuance of the Collateral Stock (where applicable) and hereby warrants to the Lender that the Borrower has done so and will continue to do so. Borrower indemnifies Lender against any penalties, fees, fines, or lawsuits that may arise from Borrower's failure to so comply and/or make proper regulatory disclosures. i. In the event of an uncured default on the Loan, as a whole with all other informationdescribed in Paragraph 1.i. of this agreement, including amendments and supplements then filed Lender will have the immediate right to sell the shares. Consequently, the Borrower expressly warrants that he shall, at the end of the Cure Period, immediately register the Shares for sale with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of appropriate regulatory authorities. Should the Borrower and its Subsidiaries is in compliance with all applicable statutesnot comply, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directors, officers or, to the knowledge of the Borrower, employees, agents, advisors or Affiliates is the subject of any sanctions or economic embargoes administered or enforced by the United States, the United Kingdom, the United Nations, the European Union, the respective institutions or agencies of any of the foregoing, collection or any other applicable sanctions authority (collectivelylegal actions be taken by lender to collect on the amount due or any portion thereof, “Sanctions”borrower will pay all reasonable costs of collection, including attorneys' fees. j. Within 90 days of the closing date, the Borrower shall obtain Key Man life insurance, naming the Lender as beneficiary and copied to the Lender by the insurer, with the amount(s) of the insurance matching the principal balance of the loan [i.e. amount may decrease as principal balance decreases]. k. Within 90 days of the closing date, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None upon Lender's notification of intent the Borrower agrees, in good faith to enter into negotiations with the Lender to establish a warrant or any of its Subsidiaries or their respective directors, officers or employees or, to the knowledge of option position in the Borrower, agents, advisors or Affiliates acting for or on behalf of the Borrower or its Subsidiaries has engaged in any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”)'s common stock. (iii) Each of the Borrower and its Subsidiaries and Affiliates has instituted and maintained policies, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Laws, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctions, or in any other manner that reasonably would be expected to result in the Borrower or any Lender being in breach of any Sanctions Laws, (y) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Laws.

Appears in 1 contract

Sources: Collateral Loan Agreement and Promissory Note (Telecommunication Products Inc)

Representations and Warranties of the Borrower. The Borrower represents and warrants, warrants as of the Effective Date (other than with respect date hereof that except as set forth in a Schedule to paragraph (l)) this Agreement or the Borrower SEC Reports for the year ended 2011 and as the first quarter of the Closing Date, as follows2012: (a) Each of the Borrower and each Subsidiary is conducting its business in compliance with its Organizational Documents. The Organizational Documents of the Borrower as currently in effect have been made available to the Lenders and remain in full force and effect with no defaults outstanding thereunder. (b) No Default or Event of Default (or any other default or event of default, however described) has occurred under any of the Financing Documents. (c) Each of the Borrower and each Subsidiary (i) is a corporation duly organized capable of paying its debts as they fall due, is not unable and validly existing under the laws of the State of New Jersey and has not admitted its inability to pay debts as they fall due, (ii) is duly qualified not bankrupt or insolvent and (iii) has not taken action, and no such action has been taken by a third party, for the Borrower’s or such Subsidiary's winding up, dissolution, or liquidation or similar executory or judicial proceeding or for the appointment of a liquidator, custodian, receiver, trustee, administrator or other similar officer for the Borrower or any Subsidiary or any or all of their respective assets or revenues. (d) No Lien exists on the Borrower’s or any Subsidiary's assets, except for Permitted Liens. (e) The obligation of the Borrower to make any payment under this Agreement (together with all charges in connection therewith) is absolute and unconditional, and there exists no right of setoff or recoupment, counterclaim, cross-claim or defense of any nature whatsoever to any such payment. (f) No Indebtedness of the Borrower or any Subsidiary exists other than Permitted Indebtedness. (g) Each of the Borrower and its Subsidiaries is validly existing as a corporation in good standing under the laws of New Jersey and each its jurisdiction of incorporation. Each of the respective states Borrower and its Subsidiaries has full power and authority to own its properties and conduct its business, and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the conduct of its principal operating facilities are located, except, with respect to this clause (ii) only, business makes such qualification necessary and in states where which the failure to be so qualified or in good standing qualify would not reasonably be expected to result in have a Material Adverse Effect. (bh) The execution, delivery and performance by the Borrower of this Agreement and the Notes (i) are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do There is not contravene (x) the Borrower’s charter or by-laws or (y) law or any material contractual restriction binding on the Borrower pending or, to the knowledge of the Borrower, threatened, any other contractual restriction binding on the Borrower. (c) No authorization or approval action, suit or other action by, and no notice proceeding before any Governmental Authority (a) to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes. (d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability. (i) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as at September 30, 2013, and the related statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent, fairly present the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such date, all in accordance with generally accepted accounting principles consistently applied. (ii) The unaudited consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of June 30, 2014 and the related unaudited consolidated statements of income and cash flows for the six months then ended and set forth in the Borrower’s Report on Form 10-Q for the quarter ended June 30, 2014, copies of which have been furnished to the Administrative Agent, fairly present, in conformity which generally accepted accounting principles applied on a basis consistent with the financial statements referred to in clause (i) of this paragraph (e), the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such nine month period (subject to normal year-end adjustments). (iii) Since September 30, 2013, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, as shown on the consolidated balance sheet as of such date and the related consolidated statement of net income for the fiscal year then ended. (f) There is no pending (or, to the Borrower’s knowledge, threatened) action or proceeding against the Borrower or any of its Subsidiaries before is a party or (b) which has as the subject thereof any court, governmental agency or arbitrator, in which there is likely to be an adverse decision that (i) would have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in filings made assets owned by the Borrower with the Securities and Exchange Commission on or before October 5, 2014, or (ii) purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note. (g) No proceeds of any Loan will be used directly or indirectly for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). (h) The Borrower and its Subsidiaries have filed (or have obtained extensions of the time by which they Subsidiaries. There are required to file) all United States Federal income tax returns and all other material tax returns required to be filed by them and have paid all taxes shown due on the returns so filed as well as all other material taxes, assessments and governmental charges which have become due, except such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided and except for filings or payments the failure of which to make would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. (i) Each Plan, andno current or, to the knowledge of the Borrower, each Multiemployer Planpending, is in compliance in all material respects withlegal, and has been administered in all material respects in compliance withgovernmental or regulatory enforcement actions, the applicable provisions of ERISA, the Code and any suits or other Federal or State law. Without limiting the foregoing, neither the Borrower nor any of its Subsidiaries has incurred any liability, other than premiums payable in the ordinary course of business, proceedings to the PBGC established under ERISA in connection with any Plan or Multiemployer Plan. (j) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (k) No statement, information, report, representation, or warranty made by the Borrower in this Agreement or furnished to the Administrative Agent or any Lender by or on behalf of the Borrower in connection with this Agreement or contained in any filing made by the Borrower with the Securities and Exchange Commission (taken as a whole with all other information, including amendments and supplements then filed with the Securities and Exchange Commission) contains any untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (l) The Borrower and its Subsidiaries are, as of the Closing Date, after giving effect to the Acquisition and the making of the Loans and application of the proceeds thereof, on a consolidated basis, Solvent. (m) Each of the Borrower and its Subsidiaries is in compliance with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities, in respect of the conduct of its business and the ownership of its property (including compliance with all applicable Environmental Laws with respect to any real estate asset or governing its business and the requirements of any permits issued under such Environmental Laws with respect to any such real estate asset or the operations of the Borrower or any of its Subsidiaries), except such non-compliance that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (i) None of the Borrower or any of its Subsidiaries or any of their respective directorsassets is subject. (i) The Financing Documents have been duly authorized, officers orexecuted and delivered by the Borrower, to the knowledge and constitute a valid, legal and binding obligation of the Borrower, employeesenforceable in accordance with their terms, agentsexcept as such enforceability may be limited by (i) applicable insolvency, advisors bankruptcy, reorganization, moratorium or Affiliates is other similar laws affecting creditors’ rights generally, and (ii) applicable equitable principles (whether considered in a proceeding at law or in equity). The execution, delivery and performance of the subject of any sanctions or economic embargoes administered or enforced Financing Documents by the United States, Borrower and the United Kingdom, consummation of the United Nations, the European Union, the respective institutions transactions therein contemplated will not (A) conflict with or agencies result in a breach or violation of any of the foregoingterms or provisions of, or constitute a default under, or result in the creation or imposition of any other applicable sanctions authority Lien upon any assets of the Borrower pursuant to any agreement to which the Borrower or any of its Subsidiaries is a party or by which the Borrower or any of its Subsidiaries is bound or to which any of the assets of the Borrower or any of its Subsidiaries is subject, (collectivelyB) result in any violation of or conflict with, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Law”). (ii) None provisions of the Organizational Documents of the Borrower or any of its Subsidiaries or their respective directors(C) result in the violation of any law or any judgment, officers order, rule, regulation or employees ordecree of any Governmental Authority, except, in the case of clauses (A) and (C) above, for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect. No consent, approval, authorization or order of, or registration or filing with any Governmental Authority is required for the execution, delivery and performance of any of the Financing Documents or for the consummation by the Borrower of the transactions contemplated hereby except (x) for such registrations and filings in connection with the issuance of the Warrants and Warrant Shares pursuant the Financing Documents that are necessary to comply with federal and state securities laws, rules and regulations, and (y) filings contemplated by the Security Agreement; and the Borrower has corporate power and authority to enter into the Financing Documents and to consummate the transactions contemplated thereunder. (j) Each of the Borrower and each of its Subsidiaries holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority (collectively, “Necessary Documents”) required for the conduct of its business and all Necessary Documents are valid and in full force and effect; and neither the Borrower nor any of its Subsidiaries has received written notice of any revocation or modification of any of the Necessary Documents and neither the Borrower nor any of its Subsidiaries has reason to believe that any of the Necessary Documents will not be renewed in the ordinary course, which revocation, modification or non-renewal, individually or in the aggregate, would result in a Material Adverse Effect; and each of the Borrower and each of its Subsidiaries is in compliance in all respects with all applicable federal, state, local and foreign laws, regulations, orders and decrees applicable to the conduct of its business, except as would not result in a Material Adverse Effect. (k) Each of the Borrower and each of its Subsidiaries have good and marketable title to all of its assets free and clear of all Liens except Permitted Liens. The property held under lease by the Borrower and its Subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Borrower or its Subsidiaries. (l) To the knowledge of the Borrower, agentsexcept as would not reasonably be expected to have a Material Adverse Effect (A) each of the Borrower and its Subsidiaries owns or has the right to use pursuant to a valid and enforceable written license, advisors implied license or Affiliates acting other legally enforceable right, all of the Intellectual Property (as defined below) that is necessary for the conduct of its business as currently conducted (the “IP”); (B) there is no outstanding, pending, or on behalf threatened action, suit, other proceeding or claim by any third person challenging or contesting the validity, scope, use, ownership, enforceability, or other rights of the Borrower or its Subsidiaries has engaged in or to any activity or conduct which would constitute a material violation of (x) any Sanctions Laws, (y) the United States Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption laws, rules, regulations or orders (collectively, “Anti-Corruption Laws”) or (z) the USA PATRIOT Act or any other applicable terrorism or money laundering laws, rules, regulations or orders (collectively, “Anti-Money Laundering Laws”). (iii) Each of IP and the Borrower and its Subsidiaries and Affiliates has instituted and maintained policieshave not received any written notice regarding, procedures and a system of internal controls designed to promote and achieve compliance with all Sanctions Lawsany such action, Anti-Corruption Laws, and Anti-Money Laundering Laws. (iv) No part of the proceeds of the Loans will be used, directly or indirectly, (x) for the purpose of financing any activities or business of or with any Person that at such time is the subject of any Sanctions, with or in any country or territory to the extent that such country or territory is the subject of any Sanctionssuit, or in any other manner proceeding; and (C) there is no pending, threatened action, suit, other proceeding or claim by others that reasonably would be expected to result in the Borrower or any Lender being in breach of its Subsidiaries infringes upon, violates or uses the Intellectual Property rights of others without authorization, and the Borrower and its Subsidiaries have not received any Sanctions Lawswritten notice regarding, any such action, suit, other proceeding or claim. The term “Intellectual Property” as used herein means (i) all patents, patent applications, patent disclosures and inventions (whether patentable or unpatentable and whether or not reduced to practice), (yii) all trademarks, service marks, trade dress, trade names, slogans, logos, and corporate names and Internet domain names, together with all of the goodwill associated with each of the foregoing, (iii) copyrights, copyrightable works, and licenses, (iv) registrations and applications for registration for any payments of the foregoing, (v) computer software (including but not limited to any governmental official or employeesource code and object code), political partydata, official databases, and documentation thereof, (vi) trade secrets and other confidential information, (vii) other intellectual property, and (viii) copies and tangible embodiments of a political party, candidate for political office, or anyone else acting the foregoing (in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law, or (z) in any way that would violate the USA PATRIOT Act or any Anti-Money Laundering Lawswhatever form and medium).

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Sources: Facility Agreement (MAKO Surgical Corp.)