Representations and Warranties of the Borrower. The Borrower represents and warrants as follows: (a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement. (b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower. (c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect. (d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
Appears in 3 contracts
Sources: Five Year Credit Agreement (United Parcel Service Inc), Five Year Credit Agreement (United Parcel Service Inc), Credit Agreement (United Parcel Service Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organizedorganized or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the all requisite power and authority to own or lease its property and assets and to carry on its business as now conductedand is duly qualified, except, licensed and in good standing under the case laws of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification is requiredqualification, except where the failure to be so to qualify qualified or in good standing would not result in have a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementEffect.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes each Loan Document to be delivered by which it is a party, and the consummation of the Transactions and the other transactions contemplated thereby hereby, are within the Borrowersuch Loan Party’s corporate or other organizational powers, have been duly authorized by all necessary corporate action and, if required, stockholder or other organizational action, and do not conflict with or contravene or result in any breach of (i) contravene the charter or other constitutive documents or such Loan Party’s charter, by-laws of the Borrower or any Subsidiary of the Borrowerother organizational documents, (ii) violate any law or order any material contractual restriction binding on or affecting such Loan Party or any of its Subsidiaries or (iii) any material order, injunction, writ or decree of any Governmental Authority or any provision of any indenture or other material agreement or instrument arbitral award to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them such Loan Party or any of their property its Subsidiaries is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowersubject.
(c) No authorization, 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 or will be required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and therebyLoan Parties of each Loan Document to which it is a party or otherwise in connection with the Transactions, except for (a) the filing of Uniform Commercial Code financing statements and filings with the United States Patent and Trademark Office and the United States Copyright Office, (b) recordation of the Mortgages and (c) such authorizations, approvals, actions, notices or filings that as have been duly obtained, taken, given or made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have beenbe, duly executed and delivered by the BorrowerBorrower and each other Loan Party that is a party thereto. This Agreement is, and any Notes each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower and each other Loan Party that is a party thereto, enforceable against the Borrower and each other Loan Party that is a party thereto in accordance with their respective terms (subjectexcept as enforceability may be limited by applicable bankruptcy, as to insolvency, or similar laws affecting the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)generally or by equitable principles relating to enforceability.
Appears in 3 contracts
Sources: Fifth Amendment to Credit Agreement (Science Applications International Corp), Credit Agreement (Science Applications International Corp), Credit Agreement (Science Applications International Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, indicated in the case recital of any such Subsidiary, where the failure so parties to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to which it is or is to be delivered by it and the consummation of the transactions contemplated thereby a party, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the Borrower's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law (including, without limitation, the Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of any indenture order, writ, judgment, injunction, decree, determination or other material agreement award, binding on or instrument to which affecting the Borrower or any Subsidiary of the Borrower is a party or by which any of them its Subsidiaries or any of their property is or may be bound or affectedproperties, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting the Borrower, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 or performance by the Borrower of this Agreement Amendment or any Notes of the Loan Documents, as amended hereby, to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effecta party.
(d) This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isAmendment and each of the other Loan Documents, and any Notes when delivered hereunder will beas amended hereby, to which the Borrower is a party is the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms its terms.
(subjecte) There is no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries (including, without limitation, any Environmental Action) pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment or any of the other Loan Documents, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)amended hereby.
Appears in 3 contracts
Sources: Credit Agreement (Iron Age Holdings Corp), Credit Agreement (Iron Age Holdings Corp), Credit Agreement (Iron Age Holdings Corp)
Representations and Warranties of the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for the undertakings on the part of the Issuer herein contained:
(ai) Each The Borrower is a corporation duly incorporated under the laws of the Borrower State of Texas and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction State of Texas, has power to enter into this Agreement and to perform and observe the agreements and covenants on its organizationpart contained herein, except, in and by proper corporate action has duly authorized the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effectexecution and delivery hereof, (ii) has the requisite power and authority Borrower is duly qualified to own its hold property and assets and to carry on its transact business as now conducted, except, a foreign corporation and is in good standing under the case laws of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse EffectState of Arizona, (iii) is qualified all of the proceeds of the Bonds will be used to do business in every jurisdiction where such qualification is requiredredeem and refund the Prior Bonds, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) prior to the issuance of the Bonds, the Federal Energy Regulatory Commission will have approved all matters relating to the Borrower’s participation in the case transactions contemplated by this Agreement which require said approval, and no other consent, approval, authorization or other order of any regulatory body or administrative agency or other governmental body is legally required for the Borrower’s participation therein except such as have been or will have been obtained prior to the issuance of the BorrowerBonds or such, has if any, as may be required under state securities or Blue Sky laws, and (v) the corporate power execution and authority to execute, deliver and perform its obligations under delivery of this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement do not, and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within hereby and fulfillment of the Borrower’s corporate powersterms hereof will not, have been duly authorized by all necessary corporate action andresult in a breach of any of the terms or provisions of, if requiredor constitute a default under, stockholder actionany indenture, and do not (i) contravene the charter mortgage, deed of trust or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower is a party, or the Restated Articles of Incorporation or Bylaws of the Borrower, or any Subsidiary of order, rule or regulation applicable to the Borrower is a party of any court or by which of any of them Federal or any of their property is state regulatory body or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement administrative agency or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by governmental body having jurisdiction over the Borrower or over any Subsidiary of its properties, or any statute of any jurisdiction applicable to the Borrower other than breaches or defaults that individually or in the aggregate are not expected to have a material adverse effect on the Borrower.
(b) The Facilities meet applicable Federal, state and local requirements for the control of pollution now in effect and are used for the reduction, abatement and prevention of pollution;
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for The Borrower does not presently expect that the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation description of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are Facilities contained in full force and effect.Exhibit A hereto will be revised;
(d) This Agreement To the extent necessary to preserve the security for the Bonds, the validity of the Bonds under the Act and the Tax-Exempt status of interest on the Bonds, all material certificates, approvals, permits and authorizations of agencies of applicable local governmental entities, the State and the federal government have been obtained with respect to the construction of the Project and, pursuant to such certificates, approvals, permits and authorizations, the Project has been, been constructed and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by is in operation.
(e) To the best knowledge of the Borrower. This Agreement is, and any Notes when delivered hereunder will beno member, the legal, valid and binding obligation officer or other official of the Borrower enforceable against Issuer has any interest whatsoever in the Borrower or in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Loan Agreement (El Paso Electric Co /Tx/), Loan Agreement (El Paso Electric Co /Tx/), Loan Agreement (El Paso Electric Co /Tx/)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to which it is or is to be delivered by it and the consummation of the transactions contemplated thereby are a party, is within the Borrower’s 's corporate powers, have has been duly authorized by all necessary corporate action and, if required, stockholder action, and do does not (i) contravene the Borrower's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law (including, without limitation, the Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of any indenture order, writ, judgment, injunction, decree, determination or other material agreement award, binding on or instrument to which affecting the Borrower or any Subsidiary of the Borrower is a party or by which any of them its Subsidiaries or any of their property is or may be bound or affectedproperties, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting the Borrower, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 delivery, recordation, filing or performance by the Borrower of this Agreement Amendment or any Notes of the Loan Documents, as amended hereby, to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effecta party.
(d) With the exception of the Section 2.06(b)(iii) Event of Default and the Covenant Events of Default described herein, there are no other Defaults or Events of Default by Borrower as of the date hereof.
(e) This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isAmendment and each of the Loan Documents, and any Notes when delivered hereunder will beas amended hereby, to which the Borrower is a party are legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms (subjectterms, except as to the enforcement of remediesenforceability may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvencymoratorium or other laws relating to or limiting creditors' rights or by equitable principles generally.
(f) There is no action, moratorium and similar laws suit, investigation, litigation or proceeding affecting creditors’ rights generally)the Borrower or any of its Subsidiaries (including, without limitation, any Environmental Action) pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment or any of the Loan Documents, as amended hereby.
Appears in 3 contracts
Sources: Credit Agreement (Glenoit Asset Corp), Credit Agreement (Glenoit Asset Corp), Credit Agreement (Glenoit Asset Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto the Administrative Agent and each of the Lenders, on each of the Effective Date (other than with respect to Section 4.01(t)) and the Closing Date (it being understood that the conditions to the Effective Date and Closing Date are solely those set out in Section 3.01 and 3.02, respectively) that:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is duly organized, validly existing and (to the extent such concept applies to such entity) in good standing under the laws of the such Loan Party’s jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes the other Loan Documents to be delivered by it which such Loan Party is a party, and the consummation of the transactions contemplated thereby hereby and thereby, (i) are within the Borrowersuch Loan Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action and, if required, stockholder action, and (iii) do not contravene (iA) contravene the such Loan Party’s charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement organizational documents or instrument to which the Borrower (B) any law, regulation or any Subsidiary of the Borrower is a party contractual restriction binding on or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any affecting such indenture, agreement or other instrument or Loan Party and (iv) will not result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerproperties of the Consolidated Group, except, in the case of clause (iii)(B) and (iv), as would not be reasonably expected to have a Material Adverse Effect.
(c) No authorization, authorization or approval or other action by, and no notice to or filing with, any Governmental Authority governmental authority or regulatory body or, except as would not be reasonably expected to have a Material Adverse Effect, any other third party is required for the due execution, delivery and performance by the Borrower any Loan Party of this Agreement or any Notes to be delivered by itthe other Loan Documents, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectas applicable.
(d) This Agreement has beenand the other Loan Documents, and any Notes to be delivered by it when delivered hereunder will as applicable, have been, been duly executed and delivered by the Borrowereach applicable Loan Party. This Agreement isand the other Loan Documents, and any Notes when delivered hereunder will beas applicable, are the legal, valid and binding obligation of the Borrower Loan Parties party thereto, enforceable against the Borrower such Loan Parties in accordance with their respective terms (subjectits terms, except as to the enforcement of remedies, to affected by applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or similar laws affecting creditors’ rights generallygenerally and general principles of equity (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2016 and, if applicable, the last day of each subsequent fiscal year for which the Borrower has most recently filed financial statements on Form 10-K, and the related Consolidated statements of earnings, comprehensive income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP or other independent public accountants of recognized national standing, and, if applicable, the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2017 and, if applicable, the last day of the most recent fiscal quarter ended after such date for which the Borrower has most recently filed financial statements on Form 10-Q subsequent to such fiscal year, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the year-to-date period then ended, if applicable, duly certified, as applicable, by the Executive Vice President, Finance and Chief Financial Officer of the Borrower, copies of which have been furnished to each Lender, fairly present, in all material respects, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP (subject, in the case of the Consolidated balance sheet included in any Form 10-Q and the related statements of earnings, comprehensive income and cash flows, to the absence of footnotes and year-end audit adjustments); provided that information required to be furnished pursuant to this Section 4.01(e) shall be deemed to have been furnished if such information, or one or more annual or quarterly or other reports or proxy statements containing such information, shall have been posted and be available on the website of the Securities and Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇ (and a confirming electronic correspondence is delivered or caused to be delivered by the Borrower to the Administrative Agent providing notice of such availability).
(f) There is no action, suit, investigation, litigation or proceeding (including, without limitation, any Environmental Action), affecting the Consolidated Group pending or, to the knowledge of the Borrower, threatened before any court, governmental agency or arbitrator that would reasonably be expected to be adversely determined, and if so determined, (a) would reasonably be expected to have a material adverse effect on the financial condition or results of operations of the Consolidated Group taken as a whole (other than the litigation set forth on Schedule 4.01(f) attached hereto) or (b) would adversely affect the legality, validity and enforceability of any material provision of this Agreement in any material respect.
(g) After giving effect to the Alere Transactions, not more than 25 percent of the value of the assets of the Borrower and of the Consolidated Group, on a Consolidated basis, subject to the provisions of Section 5.02(b), will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(h) All written information (other than the Projections (if any) and information of a general economic or industry nature) (but only, with respect to written information related to Alere and its Subsidiaries prior to the Closing Date, to the best of the Borrower’s knowledge), taken as a whole, that has been furnished to the Administrative Agent or the Lenders by the Borrower or its representatives in connection with the Alere Transactions is correct in all material respects and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not misleading in light of the circumstances under which such statements were made. The Projections (if any) that have been furnished by the Borrower to any Lenders or the Administrative Agent in connection with the Alere Transactions have been prepared in good faith based upon assumptions believed by the Borrower to be reasonable as of the date when made (it being understood that (i) the Projections (if any) are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, (ii) the Projections (if any), by their nature, are inherently uncertain and no assurances are being given that the results reflected in the Projections (if any) will be achieved and (iii) actual results may differ from the Projections (if any) and such differences may be material).
(i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan which would reasonably be expected to have a Material Adverse Effect.
(j) As of the last annual actuarial valuation date prior to the Effective Date or Closing Date, as applicable, the ▇▇▇▇▇▇ Laboratories Annuity Retirement Plan was not in at-risk status (as defined in Section 430(i)(4) of the Internal Revenue Code) and no other Plan subject to ERISA was in at-risk status (as defined in Section 430(i)(4) of the Internal Revenue Code), and since such annual actuarial valuation date there has been no material adverse change in the funding status of any Plan subject to ERISA that would reasonably be expected to cause such Plan to be in at-risk status (as defined in Section 430(i)(4) of the Internal Revenue Code).
(k) Neither the Borrower nor any ERISA Affiliate (i) is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan or has incurred any such Withdrawal Liability that has not been satisfied in full or (ii) has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization (within the meaning of Section 4241 of ERISA), insolvent (within the meaning of Section 4245 of ERISA) or has been determined to be in “endangered” or “critical” status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA), and no such Multiemployer Plan is reasonably expected to be in reorganization, insolvent or in “endangered” or “critical” status. The Borrower is not and will not be (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or account subject to Section 4975 of the Code; (iii) an entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Code; or (iv) a “governmental plan” within the meaning of ERISA.
(i) The operations and properties of the Consolidated Group comply in all respects with all applicable Environmental Laws and Environmental Permits except to the extent that the failure to so comply, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; (ii) all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without any ongoing obligations or costs except to the extent that such non-compliance, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; and (iii) no circumstances exist that would be reasonably expected to (A) form the basis of an Environmental Action against a member of the Consolidated Group or any of its properties that, either individually or in the aggregate, would have a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that, either individually or in the aggregate, would have a Material Adverse Effect.
(i) None of the properties currently or formerly owned or operated by a member of the Consolidated Group is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or, to the best knowledge of the Borrower, is adjacent to any such property other than such properties of a member of the Consolidated Group that, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; (ii) there are no, and never have been any, underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed of on any property currently owned or operated by any member of the Consolidated Group or, to the best knowledge of the Borrower, on any property formerly owned or operated by a member of the Consolidated Group that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; (iii) there is no asbestos or asbestos-containing material on any property currently owned or operated by a member of the Consolidated Group that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; and (iv) Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by a member of the Consolidated Group or, to the best knowledge of the Borrower, on any adjoining property that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(n) No member of the Consolidated Group is undertaking, and no member of the Consolidated Group has completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by a member of the Consolidated Group have been disposed of in a manner that, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(o) No member of the Consolidated Group is, or is required to register as, an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Company Act of 1940, as amended).
(p) The Loans and all related obligations of the Borrower under this Agreement rank pari passu with all other unsecured obligations of the Borrower that are not, by their terms, expressly subordinate to the obligations of the Borrower hereunder.
(i) The proceeds of the Loans will be used in accordance with Section 2.14 and (ii) the Borrower will not directly or, to the knowledge of the Borrower, indirectly (A) use the proceeds of any Borrowing for any purpose that would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010, or other similar applicable legislation in other jurisdictions or (B) use the proceeds of any Borrowing, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual or entity that, at the time of such funding, is (1) the subject of Sanctions or (2) in any Designated Jurisdiction, in each case in violation of Sanctions.
(r) Neither the Borrower nor any of its Subsidiaries or, to the knowledge of senior management of the Borrower, any director, officer, employee or agent of the Borrower or any of its Subsidiaries is an individual or entity currently the subject of any Sanctions, and neither the Borrower nor any of its Subsidiaries is located, organized or resident in a Designated Jurisdiction in violation of any Sanction.
(s) The Borrower and its Subsidiaries (i) have conducted their businesses in compliance with applicable anti-corruption laws, except to the extent that failure to so comply would not be reasonably expected to have Material Adverse Effect; and (ii) have instituted and maintained policies and procedures reasonably designed to promote and achieve compliance with such laws and with the PATRIOT Act.
(t) The Borrower is Solvent.
Appears in 3 contracts
Sources: Term Loan Agreement, Term Loan Agreement (Abbott Laboratories), Term Loan Agreement (Abbott Laboratories)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, indicated in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case recital of the Borrower, has the corporate power and authority parties to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to which it is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the each such Loan Party's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law (including, without limitation, the Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of order, writ, judgment, injunction, decree, determination or award, binding on or affecting any indenture or other material agreement or instrument to which the Borrower Loan Party or any Subsidiary of the Borrower is a party or by which any of them its Subsidiaries or any of their property is or may be bound or affectedproperties, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of their Subsidiaries or any of their properties or (iv) except for the Liens created under the Collateral Documents, as amended hereby, or any amendments or supplements thereto contemplated hereby, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement Amendment, any of the Collateral Documents or any Notes amendments or supplements thereto contemplated hereby to which each such Loan Party is or is to be delivered by ita party, or for the consummation any of the transactions contemplated hereby and therebyLoan Documents, as amended hereby, to which it is or is to be a party except for such authorizations, approvals, actions, notices or filings that approvals as shall have been made or obtained and are in full force and effectby the UHS Acquisition Closing Date.
(d) This Agreement has been, Amendment and any Notes each of the Collateral Documents and amendments and supplements thereto contemplated hereby to be delivered by it when delivered hereunder will which each Loan Party is a party have been, been duly executed and delivered by the Borrowereach such Loan Party. This Agreement isAmendment and each of the other Loan Documents, as amended hereby, to which each Loan Party is a party are, and any Notes each of the other Collateral Documents and amendments and supplements thereto contemplated hereby to which each such Loan Party is or is to be a party, when delivered hereunder hereunder, will be, the legal, valid and binding obligation obligations of the Borrower each such Loan Party, enforceable against the Borrower each such Loan Party in accordance with their respective terms (subjectterms, including as to each entity that shall become a Loan Party on the UHS Acquisition Closing Date, as to each such Loan Party on the enforcement UHS Acquisition Closing Date.
(e) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of remediestheir Subsidiaries (including, without limitation, any Environmental Action) pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to applicable bankruptcyhave a Material Adverse Effect or (ii) purports to affect the legality, reorganizationvalidity or enforceability of this Amendment, insolvencythe Collateral Documents, moratorium any amendments or supplements thereto contemplated hereby or any of the other Loan Documents, as amended hereby, or the consummation of any of the transactions contemplated hereby.
(f) As of the UHS Acquisition Closing Date, the Collateral Documents and similar laws affecting creditors’ rights generallyamendments or supplements thereto consisting of security agreements or mortgages to which any Loan Party is or is 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 Secured Obligations (in each case, as defined in such Collateral Documents or amendment or supplement thereto); and the execution, delivery and performance of this Amendment, each of the Collateral Documents and any amendments or supplements thereto contemplated hereby do not adversely affect the Liens created under any of the Collateral Documents.
Appears in 2 contracts
Sources: Credit Agreement (Mediq Inc), Credit Agreement (Mediq Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2012, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, all audited and certified by Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its Subsidiaries on a Consolidated basis as of the dates thereof required to be reflected or disclosed therein in accordance with GAAP.
(f) There has been no Material Adverse Change since December 31, 2012.
(g) Except as set forth in the financial statements referred to in subsection (e) of this Section 4.01, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries or any business, property or rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, is reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation (including, without limitation, any ERISA or environmental law, rule or regulation), or in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default is reasonably expected to result in a Material Adverse Effect.
(h) Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Advance will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which entails a violation of, or which is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X thereof.
(i) Neither the Borrower nor any of its Subsidiaries is an “investment company”, as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
(j) The Borrower will use the proceeds of the Advances for working capital and for other general corporate and other lawful business purposes.
(k) Each of the Borrower and its Subsidiaries has filed or caused to be filed all federal income tax and all other material state and local tax returns required to have been filed by it and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, except taxes that are otherwise permitted to remain unpaid in accordance with the provisions of Section 5.01(b).
(l) All information, reports, financial statements, exhibits or schedules prepared or furnished by or on behalf of the Borrower to the Agent, Arrangers or any Lender in connection with the negotiation of this Agreement or delivered pursuant hereto contained, contains or will contain no material misstatement of fact and did not omit, does not omit and will not omit 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.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (United Parcel Service Inc), Five Year Credit Agreement (United Parcel Service Inc)
Representations and Warranties of the Borrower. The In consideration of the execution and delivery of this Amendment by the Bank, the Borrower hereby represents and warrants as follows:
in favor of the Bank: (a) Each of each Borrower has the Borrower power and its Subsidiaries authority (i) is duly organizedto enter into this Amendment and (ii) to do all acts and things as are required or contemplated hereunder to be done, validly existing observed and performed by the Borrower; (b) the Borrower has the power and has taken all necessary action to authorize it to execute, deliver, and perform this Amendment in good standing under accordance with the laws of terms hereof and to consummate the jurisdiction of its organizationtransactions contemplated hereby; (c)
(i) the Borrower has obtained all necessary governmental, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effectshareholder and third party approvals, (ii) has the requisite power all such necessary governmental, shareholder and authority to own its property third party approvals are in full force and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effecteffect, (iii) none of such necessary governmental, shareholder and third party approvals is qualified the subject of any pending or, to do business in every jurisdiction where such qualification is requiredthe best of the Borrower’s knowledge, except where threatened attack or revocation, by the failure so to qualify would not result in a Material Adverse Effect grantor of the governmental, shareholder or third party approval and (iv) the Borrower is not required to obtain any additional necessary governmental, shareholder or third party approval in connection with the case execution, delivery, and performance of this Amendment, in accordance with its terms, or the consummation of the Borrower, has transactions contemplated hereby or thereby; (d) the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery delivery, and performance by the Borrower of this Agreement and any Notes to be delivered by it Amendment in accordance with its terms and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, hereby do not and do will not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or violate any Subsidiary of the Borrowerapplicable law, (ii) violate conflict with, result in a breach of, or constitute a default under the charter, bylaws and other governing documents of each Borrower or under any law or order of any Governmental Authority or any provision of any indenture indenture, agreement, or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them the Borrower or any of their property is or its properties may be bound bound, or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in require the creation or imposition of any Lien lien upon or with respect to any property or assets now owned or hereafter acquired the Borrower except liens permitted by the Borrower or any Subsidiary of the Borrower.
Loan Agreement; (ce) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have Amendment has been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the each Borrower. This Agreement is, and any Notes when delivered hereunder will be, the is a legal, valid and binding obligation of the Borrower each Borrower, enforceable against the Borrower in accordance with their respective its terms (subjectexcept to the extent that the enforceability thereof may be limited by applicable bankruptcy, as to insolvency, reorganization or similar laws affecting the enforcement of remediescreditor’s rights generally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law); (f) after giving effect to this Amendment, no Event of Default exists under the Loan Agreement; (g) as of the date hereof, all representations and warranties of the Borrower set forth in the Loan Agreement are true, correct and complete in all material respects; and (h) the Loan Agreement constitutes the legal, valid and binding obligations of each Borrower, enforceable in accordance with its terms except to the extent that the enforceability thereof may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and reorganization or similar laws affecting creditors’ the enforcement of creditor’s rights generallygenerally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
Appears in 2 contracts
Sources: Loan and Security Agreement (Halifax Corp of Virginia), Loan and Security Agreement (Halifax Corp of Virginia)
Representations and Warranties of the Borrower. The Borrower Each Loan Party party hereto hereby represents and warrants to Agent for the benefit of the Lender Group and Bank Product Providers as follows:
(a) Each of the Borrower and its Subsidiaries it (i) is duly organized, validly organized and existing and in good standing under the laws of the jurisdiction of its organization, except, (ii) is qualified to do business in the case of any such Subsidiary, state where the failure to be so qualified could reasonably be expected to qualify would not result in a Material Adverse Effect, and (iiiii) has the all requisite power and authority to own and operate its property and assets and properties, to carry on its business as now conducted and as proposed to be conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under enter into this Agreement and any Notes to carry out the transactions contemplated by this Agreement and each of the other agreement or instrument contemplated thereby Loan Documents to which it is or is to be a party and (including, without limitation, after giving effect to borrow under this Agreement., the Credit Agreement);
(b) The the execution, delivery delivery, and the performance by the Borrower it of this Agreement and any Notes each other Loan Document to be delivered by which it and is a party (including, without limitation, after giving effect to this Agreement, the consummation of the transactions contemplated thereby are within the Borrower’s corporate powersCredit Agreement), (i) have been duly authorized by all necessary corporate action and, if required, stockholder action, on the part of such Loan Party and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) do not and will not (A) violate any material provision of federal, state, or local law or order regulation applicable to such Loan Party or its Subsidiaries, the Governing Documents of such Loan Party or its Subsidiaries, or any order, judgment, or decree of any court or other Governmental Authority binding on such Loan Party or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affectedits Subsidiaries, (iiiB) conflict with, result in a breach of of, or constitute (alone or with due notice or lapse of time or both) a default under any material agreement of such indentureLoan Party where any such conflict, agreement breach or other instrument default could individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (ivC) result in or require the creation or imposition of any Lien of any nature whatsoever upon or with respect to any property or assets now owned or hereafter acquired by the Borrower of such Loan Party, other than Permitted Liens, (D) require any approval of such Loan Party's interestholders or any Subsidiary approval or consent of any Person under any material agreement of such Loan Party, other than consents or approvals that have been obtained and that are still in force and effect and except, in the Borrower.case of material agreements, for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected to cause a Material Adverse Effect, or (E) require any registration with, consent, or approval of, or notice to or other action with or by, any Governmental Authority, other than registrations, consents, approvals, notices, or other actions that have been obtained and that are still in force and effect;
(c) No authorizationeach Loan Document to which such Loan Party is a party (including, approval or other action bywithout limitation, and no notice after giving effect to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will beAgreement, the legal, Credit Agreement) is the legally valid and binding obligation of the Borrower such Loan Party, enforceable against the Borrower such Loan Party in accordance with their its respective terms (subjectterms, except as to the enforcement of remediesmay be limited by equitable principles or by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvencymoratorium, moratorium and or similar laws affecting relating to or limiting creditors’ ' rights generally;
(d) the representations and warranties contained in this Agreement, the Credit Agreement and the other Loan Documents are true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof (except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date); and
(e) after giving effect to this Agreement, no Default or Event of Default has occurred and is continuing.
Appears in 2 contracts
Sources: Credit Agreement (Liberty Oilfield Services Inc.), Credit Agreement (Liberty Oilfield Services Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto the Lender that:
(a) Each of the Borrower and its Subsidiaries (i) is it has been duly organizedincorporated, validly existing exists and is in good standing under the laws of the jurisdiction of its organization, except, incorporation and each jurisdiction where it carries on business and has been duly licensed to carry on business in the case of any such Subsidiary, all jurisdictions where the failure so to qualify would not result in a Material Adverse Effect, it is carrying on business;
(iib) it has the requisite power and authority to own its property enter into, execute and assets deliver and to carry on its business as now conductedkeep, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect observe and (iv) in the case perform all of the Borrowercovenants, has the corporate power agreements and authority to execute, deliver and perform its other obligations made by or imposed on it under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.the Promissory Note (collectively, the “Loan Documents”);
(bc) The the Loan Documents and all other instruments and agreements delivered by the borrower to the Lender pursuant to this Agreement have been or will be validly executed by it or on its behalf and, when delivered to the Lender, will be legal, valid and binding obligations of it, enforceable in accordance with their respective terms, except as enforcement may be limited by;
(i) applicable bankruptcy, insolvency, moratorium, reorganization and similar laws at the time in effect affecting the rights of creditors generally; and
(ii) equitable principles which may limit the availability of certain remedies, including the remedy of specific performance;
(d) the execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do Loan Documents does not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any material provision of any indenture regulation, order or other material 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 the Borrower or any Subsidiary of the Borrower it is a party or by which it is bound except such as have been obtained;
(e) there are no suits or judicial proceedings or proceedings before any governmental commission, board or other agency, actual, pending or to its knowledge threatened against it which involves a significant risk of them a judgment or liability which, if satisfied, would have an adverse effect upon its financial position or the ability to meet its obligations under this Agreement or to grant the Loan Documents;
(f) it is not in default under any guarantee, note or other instrument evidencing any indebtedness, other than as disclosed in writing to the Lender by the Borrower, and to its knowledge there exists no state of their property facts which, after notice or lapse of time or both or otherwise, would constitute such a default; and
(g) no event is or may be bound or affectedoutstanding which constitutes, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indentureboth would constitute, agreement or other instrument or an Event of Default (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generallydefined below).
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 Effective as of the Initial Closing Date and the date of each Advance, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, except that the representations in the following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) Each of the Borrower It is a national banking association and its Subsidiaries (i) is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) America and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Trust Agreement and any Notes (assuming due authorization, execution and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other agreement or instrument contemplated thereby Operative Agreements to which it the Trust Company or the Owner Trustee, as the case may be, is or is to will be a party and to borrow under this Agreement.party;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party, either in its individual capacity or (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of this Agreement Holders) as the Owner Trustee, as the case may be, has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law Legal Requirement relating to its banking or order trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict withwould materially and adversely affect its ability, result in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon Governmental Action by any Governmental Authority regulating its banking or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.trust powers;
(c) No authorizationThe Trust Agreement and, approval or other action by, and no notice to or filing with, any Governmental Authority assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower Holders, each other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by the Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower Trust Company or the Owner Trustee, as the case may be, in accordance with their respective the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party, either in its individual capacity or as the Owner Trustee, before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party;
(e) It, either in its individual capacity or as the Owner Trustee, has not assigned or transferred any of its right, title or interest in or under the Lease, the Agency Agreement or its interest in any Property or any portion thereof, except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of the Loans and Holder Advances shall not be applied by the Owner Trustee, either in its individual capacity or as the Owner Trustee, for any purpose other than the purchase of the Properties, the acquisition, installation and testing of the Equipment, the construction of Improvements and the payment of Transaction Expenses and the fees, expenses and other disbursements referenced in Sections 7.1(a), 7.1(b) and 7.2 of this Agreement, in each case which accrue prior to the Rent Commencement Date with respect to a particular Property;
(h) Neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar security relating to a Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The Owner Trustee’s principal place of business, chief executive office and office where the documents, accounts and records relating to applicable bankruptcythe transactions contemplated by this Agreement and each other Operative Agreement are kept are located at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, reorganization▇▇▇▇ ▇▇▇▇ ▇▇▇▇, insolvency▇▇▇▇ ▇▇▇▇▇;
(j) The Owner Trustee is not engaged principally in, moratorium and similar laws affecting creditors’ rights generallydoes not have as one (1) of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of the Loans or the Holder Advances will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulations T, U, or X of the Board of Governors of the Federal Reserve System of the United States;
(k) The Owner Trustee is not an “investment company” or a company controlled by an “investment company” within the meaning of the Investment Company Act;
(l) Each Property is free and clear of all Lessor Liens attributable to the Owner Trustee, either in its individual capacity or as the Owner Trustee;
(m) The Owner Trustee, in its trust capacity, is not a party to any documents, instruments or agreements other than the Operative Agreements executed by the Owner Trustee, in its trust capacity; and
(n) The Owner Trustee has filed the requisite documents with the Secretary of State of the State of Texas pursuant to Section 105A of the Texas Probate Code and, as an out-of-state bank, is authorized to act as a fiduciary in the State of Texas; in connection with such filing with the Secretary of State of the State of Texas, the Owner Trustee has represented that the State of Utah has a reciprocal statute or law that permits an out-of-state bank or trust company to serve as a fiduciary in the State of Utah; and the Owner Trustee has no office, branch offices or employees located in the State of Texas.
Appears in 2 contracts
Sources: Participation Agreement (Sabre Holdings Corp), Participation Agreement (Sabre Holdings Corp)
Representations and Warranties of the Borrower. The 2.1 To induce the Lenders to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), the Borrower represents and warrants as followsto the Lenders that:
(a) Each this Amendment, and the documents to be executed in connection with this Amendment, have been duly authorized, executed and delivered and constitute the legal, valid and binding obligations, contracts and agreements of the Borrower and enforceable against it in accordance with its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is requiredterms, except where the failure so as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.limiting creditors' rights generally;
(b) The the Credit Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation, contract and agreement of the Borrower enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally;
(c) the execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powersAmendment, have (i) has been duly authorized by all necessary requisite corporate action of the Borrower and, if required, stockholder shareholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any law provision of law, statute, rule or the Borrower's articles of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any Governmental Authority other agency or government binding upon it, or (3) any provision of any indenture material indenture, agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them its properties or any of their property is assets are or may be bound bound, or affected, (iiiB) conflict with, result in a breach of or constitute (alone or with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument or referred to in clause (iviii)(A)(3) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.Section 2.1(c);
(d) This as of the date hereof and after giving effect to this Amendment, no Event of Default has occurred which is continuing; and
(e) all the representations and warranties contained in Article 5 of the Credit Agreement has been, are true and any Notes to be delivered by it when delivered hereunder will have been, duly executed correct in all material respects with the same force and delivered effect as if made by the Borrower. This Agreement is, Borrower on and any Notes when delivered hereunder will be, the legal, valid and binding obligation as of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)date hereof.
Appears in 2 contracts
Sources: Credit Agreement (Rdo Equipment Co), Credit Agreement (Rdo Equipment Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse EffectDelaware, (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 the requisite corporate power and authority to own or lease and operate its property and assets properties and to carry on its business as now conducted, except, in the case of any such Subsidiary, conducted except where the failure to do so to qualify would not result in have a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it the Basic Documents, and the consummation of the transactions contemplated thereby hereby (including, without limitation, the Acquisition), are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents Borrower's certificate of incorporation or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law law, rule, regulation, order, writ, judgment, injunction, decree, determination or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement 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 have a Material Adverse Effect, or (iv) result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or its Subsidiaries. The Borrower is not in violation of any Subsidiary such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of the Borrowerany contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, except for such violation or breach which would not have a Material Adverse Effect.
(c) No authorizationExcept 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 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 or any Notes to be delivered by itthe Basic Documents, or for the consummation of the transactions contemplated hereby and therebyhereby, except for and to the extent that either (x) any failure to obtain such authorizationsauthorization, approvalsapproval or other action would not have a Material Adverse Effect or (y) with respect only to the Acquisition and the Acquisition Documents, actionsthe waiver by the Borrower of receipt of such authorization, notices approval or filings that have been made other action would constitute a Permitted Modification, or obtained and are in full force and effect(ii) the consummation of the Acquisition.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by Each of the Borrower. This Agreement Loan Documents is, and any the Notes when delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its terms.
(e) The Borrower has heretofore furnished to each of the Lenders consolidated balance sheets of the Borrower and its Subsidiaries as at December 29, 1995 and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year ended on said date, with the opinion thereon (in the case of said consolidated balance sheet and statements) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP. All such financial statements are complete and correct and fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at said date and the consolidated results of their respective terms operations for the fiscal year ended on said date, all in accordance with GAAP. Since December 29, 1995, there has been no Material Adverse Change.
(subjectf) No information, exhibit or report furnished by or on behalf of the Borrower 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, in the light of the circumstances under and the 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 its Subsidiaries, to the best of the Borrower's knowledge. Credit Agreement ----------------
(g) There is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator which (i) 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 to the Borrower or the Borrower and its Subsidiaries taken as a whole.
(l) 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 for any purpose that violates the provisions of the regulations of the Board of Governors of the Federal Reserve System and after applying the proceeds of each Loan, the Borrower is in Credit Agreement ---------------- compliance with its obligations under Section 6.02(g). If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender 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 Lender, as to permit the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).transactions contemplated hereby in accordance with 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 follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2006, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, all audited and certified by Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its Subsidiaries on a Consolidated basis as of the dates thereof required to be reflected or disclosed therein in accordance with GAAP.
(f) There has been no Material Adverse Change since December 31, 2006.
(g) Except as set forth in the financial statements referred to in subsection (e) of this Section 4.01, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries or any business, property or rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, is reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation (including, without limitation, any ERISA or environmental law, rule or regulation), or in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default is reasonably expected to result in a Material Adverse Effect.
(h) Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Advance will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which entails a violation of, or which is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X thereof.
(i) Neither the Borrower nor any of its Subsidiaries is an “investment company”, as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
(j) The Borrower will use the proceeds of the Advances as a commercial paper backstop and for other lawful general corporate purposes.
(k) Each of the Borrower and its Subsidiaries has filed or caused to be filed all federal income tax and all other material state and local tax returns required to have been filed by it and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, except taxes that are otherwise permitted to remain unpaid in accordance with the provisions of Section 5.01(b).
(l) All information, reports, financial statements, exhibits or schedules prepared or furnished by or on behalf of the Borrower to the Agent, Arrangers or any Lender in connection with the negotiation of this Agreement or delivered pursuant hereto contained, contains or will contain no material misstatement of fact and did not omit, does not omit and will not omit 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.
Appears in 2 contracts
Sources: Credit Agreement (United Parcel Service Inc), Credit Agreement (United Parcel Service Inc)
Representations and Warranties of the Borrower. The ---------------------------------------------- Borrower represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, indicated in the case recital of any such Subsidiary, where the failure so parties to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to which it is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the Borrower's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law law, rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of any indenture order, writ, judgment, injunction, decree, determination or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement 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 (iv) 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 property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 or performance by the Borrower of this Agreement Amendment or any Notes of the Loan Documents, as amended hereby, to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effecta party.
(d) This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isAmendment and each of the other Loan Documents, and any Notes when delivered hereunder will beas amended hereby, to which the Borrower is a party are legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms terms.
(subjecte) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than as set forth on Schedule 4.01(j) to the Credit Agreement) or (ii) purports to affect the legality, validity or enforceability of this Amendment or any of 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 enforcement date of remediesthis Amendment, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)in which case as of such specific date.
(g) No Defaults exists under the Credit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Telespectrum Worldwide Inc), Credit Agreement (Telespectrum Worldwide Inc)
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 warrants as followsto the Administrative Agent and the Lenders that the following statements are true, correct and complete:
(ai) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to executemake, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby the Amendment Documents to which it is or a party;
(ii) the execution and delivery of this Amendment and the performance of the Amendment Documents to which the Borrower is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, partnership powers and have been duly authorized by all necessary corporate partnership or other organizational action and, if required, stockholder 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 (a) do not 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, (ib) contravene will not violate any applicable law or regulation or the charter or other constitutive documents any order, judgment or decree of any Governmental Authority, by-laws or other organizational documents of the Borrower or any Subsidiary of the Borrowerits Subsidiaries, (iic) will not violate or result in a default under any law or order material indenture, loan agreement, credit agreement, promissory note, letter of any Governmental Authority or any provision of any indenture credit or other material agreement or instrument to which binding upon the Borrower or any Subsidiary of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower is a party or by which any of them or any of their property is or may be bound or affectedits Subsidiaries, and (iiid) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) will not result in the creation or imposition of any Lien upon or with respect to on any property or assets now owned or hereafter acquired by asset of the Borrower or any Subsidiary of its Subsidiaries (other than Liens created under the Borrower.Loan Documents);
(civ) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have Amendment has been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, Borrower and any Notes when delivered hereunder will be, each of the Amendment Documents to which the Borrower is a party constitutes a legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms (subjectits terms, as to the enforcement of remedies, subject to applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and similar or other laws affecting creditors’ rights generally)generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
(v) 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 Amendment Effective Date except to the extent that such 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 Event of Default has occurred and is continuing or will result from the consummation of the transactions contemplated by the Amendment 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 followsto DEQ that:
(a1) Each It is a duly formed and existing public agency (as defined in ORS 468.423(2)) and has full power and authority to enter into this Loan Agreement.
(2) This Agreement has been duly authorized and executed and delivered by an authorized officer of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective its terms.
(3) All acts, conditions and things required to exist, happen and be performed precedent to and in the issuance of this Agreement have existed, have happened, and have been performed in due time, form and manner as required by law.
(4) Neither the execution of this Loan Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with any of the terms and conditions of this Loan Agreement will violate any provision of law, or any order of any court or other agency of government, or any agreement or other instrument to which the Borrower is now a party or by which the Borrower or any of its properties or assets is bound. Nor will this Loan Agreement be in conflict with, result in a breach of, or constitute a default under, any such agreement or other instrument, or, except as provided hereunder, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower.
(5) This Loan Agreement does not create any unconstitutional indebtedness. The Loan Amount together with all of the Borrower’s other obligations does not, and will
(6) The Project is a project which the Borrower may undertake pursuant to Oregon law and for which the Borrower is authorized by law to borrow money.
(7) The Borrower has full legal right and authority and all necessary licenses and permits required as of the date hereof to own, operate and maintain the Facility and the Project, other than licenses and permits relating to the Facility or the Project which the Borrower expects to and shall receive in the ordinary course of business, to carry on its activities relating thereto, to execute and deliver this Agreement, to undertake and complete the Project, and to carry out and consummate all transactions contemplated by this Agreement.
(8) The information contained herein which was provided by the Borrower is true and accurate in all respects, and there is no material adverse information relating to the Project or the Loan, known to the Borrower, that has not been disclosed in writing to DEQ.
(9) No litigation exists or has been threatened that would cast doubt on the enforceability of the Borrower's obligations under this Loan Agreement.
(10) The estimated Completion Date of the Project is January 31, 2017. The Borrower agrees to complete the Project by the estimated Completion Date.
(11) The estimated total Costs of the Project are $13,620,000.
(12) The Borrower is in compliance with all laws, ordinances, and governmental rules and regulations to which it is subject, as the failure to comply with which would materially adversely affect the enforcement ability of remedies, the Borrower to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)conduct its activities or undertake or complete the Project or the condition (financial or otherwise) of the Borrower or the Project.
Appears in 2 contracts
Sources: Clean Water State Revolving Fund Loan Agreement, Clean Water State Revolving Fund Loan Agreement
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, indicated in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case recital of the Borrower, has the corporate power parties to this Amendment and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementWaiver.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement Amendment and any Notes Waiver and the Loan Documents, as amended hereby, to which it is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the each such Loan Party's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law (including, without limitation, the Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of order, writ, judgment, injunction, decree, determination or award, binding on or affecting any indenture or other material agreement or instrument to which the Borrower Loan Party or any Subsidiary of the Borrower is a party or by which any of them its Subsidiaries or any of their property is or may be bound or affectedproperties, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of their Subsidiaries or any of their properties or (iv) except for the Liens created under the Collateral Documents, as amended hereby, or any amendments or supplements thereto contemplated hereby, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement Amendment and Waiver, any of the Collateral Documents or any Notes amendments or supplements thereto contemplated hereby to which each such Loan Party is or is to be delivered by ita party, or for the consummation any of the transactions contemplated hereby and therebyLoan Documents, except for such authorizationsas amended hereby, approvals, actions, notices to which it is or filings that have been made or obtained and are in full force and effectis to be a party.
(d) This Agreement has been, Amendment and any Notes Waiver and each of the Collateral Documents and amendments and supplements thereto contemplated hereby to be delivered by it when delivered hereunder will which each Loan Party is a party have been, been duly executed and delivered by the Borrowereach such Loan Party. This Agreement isAmendment and Waiver and each of the other Loan Documents, as amended hereby, to which each Loan Party is a party are, and any Notes each of the other Collateral Documents and amendments and supplements thereto contemplated hereby to which each such Loan Party is or is to be a party, when delivered hereunder hereunder, will be, the legal, valid and binding obligation obligations of the Borrower each such Loan Party, enforceable against the Borrower each such Loan Party in accordance with their respective terms terms.
(subjecte) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of their Subsidiaries (including, without limitation, any Environmental Action) pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment and Waiver, the Collateral Documents, any amendments or supplements thereto contemplated hereby or any of the other Loan Documents, as to amended hereby, or the enforcement consummation of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)any of the transactions contemplated hereby.
Appears in 2 contracts
Sources: Credit Agreement (Mediq Inc), Credit Agreement (Mediq Inc)
Representations and Warranties of the Borrower. The In order to induce the Banks and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto each Bank and Administrative Agent that the following statements are true, correct and complete:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it Amendment No. 1 and the consummation of Credit Agreement as amended by this Amendment No. 1 (the transactions contemplated thereby “Amended Credit Agreement”; and collectively, the “Amendment Documents”) are within the Borrower’s corporate powersits partnership authority, have been duly authorized by all necessary corporate action and, if required, stockholder requisite action, and do are not (i) contravene in conflict with the charter terms of any organizational instruments of such entity, or other constitutive documents any instrument or by-laws of the agreement to which Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower General Partner is a party or by which any of them Borrower, General Partner or any of their property is or respective assets may be bound or affected, ;
(ii) The officers of General Partner executing this Amendment No. 1 and any other Amendment Documents required to be delivered by it on behalf of ▇▇▇▇▇▇▇▇ hereunder have been duly elected or appointed and were fully authorized to execute the same at the time each such Amendment Document was executed;
(iii) conflict withThe execution and delivery of, and the performance of the obligations required to be performed by ▇▇▇▇▇▇▇▇ under, this Amendment No. 1 and any other Amendment Documents do not and will not (a) violate any provision of, or, except for those which have been made or obtained, require any filing (other than SEC disclosure filings), registration, consent or approval under, any Law (including, without limitation, Regulation U), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it, except for such violations, or filings, registrations, consents and approvals which if not done or obtained would not likely cause a Material Adverse Change to occur, (b) result in a breach of or constitute (alone or with notice or lapse of time or both) a default under or require any such indenture, consent under any indenture or loan or credit agreement or any other agreement, lease or instrument to which it may be a party or by which it or its properties may be bound or affected except for consents which have been obtained or which if not obtained are not likely to cause a Material Adverse Change to occur, (ivc) result in in, or require, the creation or imposition of any Lien Lien, upon or with respect to any property or assets of its properties now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice which would likely cause a Material Adverse Change to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itoccur, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes cause it to be delivered in default under any such Law, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument which would likely cause a Material Adverse Change to occur; to the best of its knowledge, Borrower is in compliance with all Laws applicable to it and its properties where the failure to be in compliance would cause a Material Adverse Change to occur;
(iv) Each of this Amendment No. 1 and the other Amendment Documents is a legal, valid and binding obligation of Borrower, enforceable in accordance with its terms, except to the extent that such enforcement may be limited by it when delivered hereunder will applicable bankruptcy, insolvency and other similar laws affecting creditors’ rights generally, as well as general principles of equity;
(v) This Amendment No. 1 and the other Amendment Documents have been, been duly executed and delivered by the Borrower. This Agreement is, ;
(vi) The representations and any Notes when delivered hereunder will be, the legal, valid and binding obligation warranties of the Borrower enforceable against contained in Article V of the Credit Agreement are and will be true and correct in all material respects (or in the case of any representation or warranty that is qualified as to “materiality”, “Material Adverse Change” or similar language, in all respects) on and as of the Amendment Effective Date to the same extent as though made on and as of such dates (except in those cases where such representation or warranty expressly relates to an earlier date, in which case such representations and warranties were true and correct in all material respects (or in the case of any representation or warranty that is qualified as to “materiality”, “Material Adverse Change” or similar language, in all respects) as of such date, and except for changes in factual circumstances permitted hereunder), provided that Section 5.20 of the Credit Agreement is qualified insofar as the Borrower will be required to file this Amendment No. 1 in accordance connection with their respective terms its compliance with its periodic reporting obligations; and
(subjectvii) No Default or Event of Default has occurred and is continuing, as both before and after giving effect to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)this Amendment No. 1.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Vornado Realty Lp), Term Loan Agreement (Vornado Realty Lp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the Borrower State of Nevada and is duly qualified to do business and is in good standing as a foreign corporation under the laws of each state in which the ownership of its Subsidiaries (i) properties or the conduct of its business makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect, and each Material Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is incorporated or is to be a party and to borrow under this Agreementotherwise organized.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it each Loan Document, and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrower’s corporate powers, powers and have been duly authorized by all necessary corporate action and, if required, stockholder action, . Each Loan Document has been duly executed and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or delivered by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itLoan Document, or for the consummation of the transactions contemplated hereby and thereby, except for other than such authorizations, approvals, actions, notices or filings Governmental Approvals that have been made or duly obtained and are in full force and effect, which as of the date hereof are as follows: Order issued January 25, 2022 by the PUCN in Docket No. 21-10026.
(d) This Agreement has beenThe execution, delivery and performance by Borrower of the Loan Documents will not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower or any Notes 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 delivered by it when delivered hereunder will expected to have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, a Material Adverse Effect.
(e) Each Loan Document is the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms (subjectits terms, except as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium limited by bankruptcy and similar laws affecting the enforcement of creditors’ rights generallygenerally and by the application of general equitable principles.
(f) 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 sheet of the Borrower and its Consolidated Subsidiaries as at December 31, 2021, and the related consolidated statements of income, cash flows and stockholders’ equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Administrative Agent and each Lender, present fairly in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such date, and the consolidated results of their operations and cash flows 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 (except as may be disclosed therein).
(i) Since December 31, 2021, no event has occurred that could reasonably be expected to have a Material Adverse Effect.
(j) The Borrower 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 on any assessments made against it or any of its property; other than (i) with respect to taxes the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or the applicable Material Subsidiary, as the case may be, or (ii) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
(k) 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 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
Appears in 2 contracts
Sources: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries Loan Party (i) is a corporation or limited liability company duly organizedorganized or formed, validly existing and in good standing under the laws Laws of the jurisdiction of its incorporation or organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (A) own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (ivB) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby the Loan Documents to which it is a party, (iii) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, and (iv) is in compliance with all Laws; except in each case referred to in subsection (ii)(A), (iii) or (iv), to the extent that failure to do so could not reasonably be expected to have a party and to borrow under this AgreementMaterial Adverse Effect.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes each Loan Document to be delivered by which it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powersis party, have been duly authorized by all necessary corporate action and, if required, stockholder or other organizational action, and do not (i) contravene the charter or other constitutive documents or by-laws terms of the Borrower or any Subsidiary of the Borrower, such Person’s Organization Documents; (ii) violate conflict with or result in any law breach or order contravention of, or the creation of any Lien under, (A) any Contractual Obligation to which the Borrower is a party, except to the extent that such breach, contravention or creation of any such Lien could not reasonably be expected to have a Material Adverse Effect or (B) any order, injunction, writ or decree of any Governmental Authority or any provision of any indenture or other material agreement or instrument arbitral award to which the Borrower or its property is subject; or (iii) violate any material Law. No Subsidiary of the Borrower is a party in violation of any Law or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse any Contractual Obligation, the violation of time or both) which could be reasonably likely to have a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the BorrowerMaterial Adverse Effect.
(c) No approval, consent, exemption, authorization, approval or other action by, and no or notice to to, or filing with, any Governmental Authority or any other Person is necessary or required for in connection with the due execution, delivery and or performance by the Borrower by, or enforcement against, any Loan Party of this Agreement or any Notes other Loan Document to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectwhich it is a party.
(d) This Agreement has been, and any Notes each other Loan Document to be delivered by it which each Loan Party is a party, when delivered hereunder hereunder, will have been, duly executed and delivered by the Borrowersuch Loan Party. This Agreement isconstitutes, and any Notes each other Loan Document when so delivered hereunder will beconstitute, the a legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, subject in the case of enforceability to the effects of bankruptcy and general principles of equity.
(i) The Audited Financial Statements (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (B) fairly present the consolidated financial condition of the Borrower enforceable as of the date thereof and its consolidated results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (C) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof to the extent required by GAAP, including liabilities for taxes, material commitments and Indebtedness to the extent required by GAAP.
(ii) The Unaudited Financial Statements (A) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, (B) fairly present the consolidated financial condition of the Borrower as of the date thereof and its consolidated results of operations for the period covered thereby, except as expressly noted therein, and subject, in the case of clauses (A) and (B), to year-end audit adjustments, and (C) show all material indebtedness and other liabilities, direct or contingent, of the Borrower and its consolidated Subsidiaries as of the date thereof to the extent required by GAAP, including liabilities for taxes, material commitments and Indebtedness to the extent required by GAAP.
(iii) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
(f) There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that (i) except the Disclosed Litigation, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect and there has been no material adverse development in any Disclosed Litigation or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
(g) Neither the Borrower nor any Subsidiary is in default under or with respect to any Indebtedness or Guarantee that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
(h) The Borrower and its Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Borrower has reasonably concluded that such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(i) The properties of the Borrower and its Subsidiaries are insured with insurance companies or with a captive insurance company that is an Affiliate of the Borrower as to which the Agent may request reasonable evidence of financial responsibility, in such amounts, with such deductibles and covering such risks as are customarily carried by companies with similar financial capacity and engaged in similar businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary operates.
(j) The Borrower and its Subsidiaries have filed all tax returns and reports required to be filed, and have paid all taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with their respective terms GAAP and except for those tax returns, reports, taxes, assessments, fees and other governmental charges, which in the aggregate, could not reasonably be expected to have a Material Adverse Effect. The Borrower is not aware of any proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.
(subjecti) Except as could not reasonably be expected to have a Material Adverse Effect, each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other Federal or state Laws. Except as could not reasonably be expected to have a Material Adverse Effect, no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Internal Revenue Code has been made with respect to any Plan.
(ii) There are no pending or, to the enforcement best knowledge of remediesthe Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to applicable bankruptcyany Plan that could be reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(iii) Except as could not be reasonably expected to have a Material Adverse Effect, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).(A) no ERISA Event has occurred or is reasonably expected to occur; (B) no Pension Plan has any Unfunded Pension Liability;
Appears in 2 contracts
Sources: Credit Agreement (Hillenbrand, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is duly organized, validly existing and in good standing under the laws of the jurisdiction laws of its justification of organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes the Loan Documents to be delivered by which it is a party, and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrowersuch Loan Party’s corporate or other organizational powers, have been duly authorized by all necessary corporate action and, if required, stockholder or other action, and do not contravene (i) contravene the such Loan Party’s charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerother organizational documents, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affectedlaw, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, deed of trust, credit agreement or other instrument loan agreement binding on or affecting the Borrower or (iv) result in the creation any other material agreement, contract or imposition of any Lien upon instrument binding on or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borroweraffecting such Loan Party.
(c) No authorization, authorization or approval or other action by, and no notice to or filing with, any Governmental Authority governmental authority or regulatory body is required for the due execution, delivery and performance by any Loan Party of the Borrower of this Agreement Loan Documents to which it is or any Notes is to be delivered by ita party. No authorization or approval or other action by, and no notice to or filing with, any third party is required for the consummation due execution, delivery and performance by any Loan Party of the transactions contemplated hereby and therebyLoan Documents to which it is or is to be a party, except for such authorizations, approvals, actions, notices to the extent that failure to so obtain or filings that so file could not reasonably be expected to have been made or obtained and are in full force and effecta Material Adverse Effect.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have been, duly executed and delivered by the Borrowereach Loan Party party thereto. This Agreement is, and any Notes each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower each Loan Party party thereto enforceable against the Borrower such Loan Party in accordance with their respective terms (subjectterms, as subject to the enforcement effect of remedies, to any applicable bankruptcy, reorganization, insolvency, reorganization or moratorium and or similar laws affecting creditors’ the rights generallyof creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2007, and the related Consolidated statements of income and cash flows of the Borrower and its 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 each Lender, fairly present in accordance with GAAP the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, no event or circumstance has occurred and is continuing that could reasonably be expected to result in a Material Adverse Change.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) could be reasonably likely to adversely affect the legality, validity or enforceability of this Agreement or any other Loan Documents or the consummation of the transactions contemplated hereby or thereby.
(g) 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.
(h) 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.
(i) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
Appears in 2 contracts
Sources: Credit Agreement (Packaging Corp of America), Credit Agreement (Packaging Corp of America)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries It (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the all requisite power and authority to own its property and assets and to carry on its business as now conducted and as proposed to be conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect Effect, and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to be delivered by which it is a party, and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, hereby (i) have been duly authorized by all necessary requisite corporate action and, if required, stockholder action, actions and do (ii) will not (iA) contravene violate (1) any provision of any law, statute, rule or regulation (including, without limitation, the charter Margin Regulations) or of its certificate of incorporation or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii2) violate any law or order of any Governmental Authority or (3) any provision of any indenture indenture, agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their its property is or may be bound or affectedbound, (iiiB) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (ivC) except for the Liens created under the Collateral Documents, result in the creation or imposition of any Lien lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have This Amendment has been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Amendment and the Credit Agreement isand the Notes, and any Notes when delivered hereunder will beas amended hereby, are the legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms terms.
(subjectd) No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the due execution, delivery, recordation, filing or performance by the Borrower of this Amendment.
(e) There are no actions or proceedings filed or (to its knowledge) investigations pending or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which question the validity, enforceability or legality of or seek damages in connection with this Amendment or the Credit Agreement and the Notes, as amended hereby, or any action taken or to be taken pursuant to this Amendment or the enforcement Credit Agreement and the Notes, as amended hereby, and no order or judgment has been issued or entered restraining or enjoining it from the execution, delivery or performance of remediesthis Amendment or the Credit Agreement and the Notes, as amended hereby, nor is there any action or proceeding which involves a probable risk of an adverse determination which would have any such effect; (ii) nor is there as of the date hereof any other action or proceeding filed or (to applicable bankruptcyits knowledge) investigation pending or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which involves a probable risk of a material adverse decision which would result in a Material Adverse Effect , reorganizationexcept as provided in the Borrower’s Annual Report on Form 10-K for the fiscal quarter ended September 30, insolvency2003, moratorium or materially restrict the ability of it to comply with its obligations under this Amendment or the Credit Agreement and similar laws affecting creditors’ rights generally)the Notes, as amended hereby.
Appears in 2 contracts
Sources: Five Year Revolving Credit Facility Agreement (Avaya Inc), Five Year Revolving Credit Facility Agreement (Avaya Inc)
Representations and Warranties of the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for the undertakings on the part of the Issuer herein contained:
(ai) Each The Borrower is a corporation duly incorporated under the laws of the Borrower State of Texas and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction State of Texas, has power to enter into this Agreement and to perform and observe the agreements and covenants on its organizationpart contained herein, except, in and by proper corporate action has duly authorized the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effectexecution and delivery hereof, (ii) has the requisite power and authority Borrower is duly qualified to own its hold property and assets and to carry on its transact business as now conducted, except, a foreign corporation and is in good standing under the case laws of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse EffectState of Arizona, (iii) is qualified all of the proceeds of the Bonds will be used to do business in every jurisdiction where such qualification is requiredredeem and refund the Prior Bonds, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) prior to the issuance of the Bonds, the Federal Energy Regulatory Commission will have approved all matters relating to the Borrower’s participation in the case transactions contemplated by this Agreement which require said approval, and no other consent, approval, authorization or other order of any regulatory body or administrative agency or other governmental body is legally required for the Borrower’s participation therein except such as have been or will have been obtained prior to the issuance of the BorrowerBonds or such, has if any, as may be required under state securities or Blue Sky laws, and (v) the corporate power execution and authority to execute, deliver and perform its obligations under delivery of this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement do not, and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within hereby and fulfillment of the Borrower’s corporate powersterms hereof will not, have been duly authorized by all necessary corporate action andresult in a breach of any of the terms or provisions of, if requiredor constitute a default under, stockholder actionany indenture, and do not (i) contravene the charter mortgage, deed of trust or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower is a party, or the Restated Articles of Incorporation or Bylaws of the Borrower, or any Subsidiary of order, rule or regulation applicable to the Borrower is a party of any court or by which of any of them Federal or any of their property is state regulatory body or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement administrative agency or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by governmental body having jurisdiction over the Borrower or over any Subsidiary of its properties, or any statute of any jurisdiction applicable to the Borrower other than breaches or defaults that individually or in the aggregate are not expected to have a material adverse effect on the Borrower.
(b) The Facilities meet applicable Federal, state and local requirements for the control of pollution now in effect and are used for the reduction, abatement and prevention of pollution.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for The Borrower does not presently expect that the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation description of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are Facilities contained in full force and effectExhibit A hereto will be revised.
(d) This Agreement To the extent necessary to preserve the security for the Bonds, the validity of the Bonds under the Act and the Tax-Exempt status of interest on the Bonds, all material certificates, approvals, permits and authorizations of agencies of applicable local governmental entities, the State and the federal government have been obtained with respect to the construction of the Project and, pursuant to such certificates, approvals, permits and authorizations, the Project has been, been constructed and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by is in operation.
(e) To the best knowledge of the Borrower. This Agreement is, and any Notes when delivered hereunder will beno member, the legal, valid and binding obligation officer or other official of the Borrower enforceable against Issuer has any interest whatsoever in the Borrower or in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Loan Agreement (El Paso Electric Co /Tx/), Loan Agreement (El Paso Electric Co /Tx/)
Representations and Warranties of the Borrower. The In order to induce the Lenders and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto the Lenders and Administrative Agent that the following statements are true, correct and complete:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it Amendment No. 1 and the consummation of Credit Agreement as amended by this Amendment No. 1 (the transactions contemplated thereby “Amended Agreement”, and together with this Amendment No. 1, the “Amendment Documents”) are within the Borrower’s corporate powers, partnership powers and have been duly authorized by all necessary corporate partnership or other organizational action andon the part of the Borrower;
(ii) the execution, if required, stockholder action, delivery and performance of this Amendment No. 1
(a) do not 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 and except for such filings as may be required with the SEC to comply with disclosure obligations, (ib) contravene will not violate any applicable law or regulation or the charter or other constitutive documents or charter, by-laws or other organizational documents of the Borrower or any Subsidiary of its Subsidiaries or the Borrower, (ii) violate Parent Companies or any law or order of any Governmental Authority or Authority, except for any provision violation of any indenture applicable law or other material agreement or instrument regulation that would not reasonably be expected to which the Borrower or any Subsidiary of the Borrower is have a party or by which any of them or any of their property is or may be bound or affectedMaterial Adverse Effect, (iiic) conflict with, will not violate or result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or the Parent Companies or their assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries or the Parent Companies, except for any violation or default that would not reasonably be expected to have a Material Adverse Effect, and (ivd) will not result in the creation or imposition of any Lien upon or with respect to on any property or assets now owned or hereafter acquired by asset of the Borrower or any Subsidiary of its Subsidiaries or the Parent Companies;
(iii) each of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have Amendment Documents has been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, Borrower and any Notes when delivered hereunder will be, the constitutes a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their its respective terms (subjectterms, as to the enforcement of remedies, subject to applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and similar or other laws affecting creditors’ rights generallygenerally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
(iv) the representations and warranties made or deemed made by the Borrower in any Loan Document are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on the Amendment Effective Date (except to the extent that any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall be true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) as of such earlier date); and
(v) no Default or Event of Default has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment No. 1.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Brixmor Operating Partnership LP), Term Loan Agreement (Brixmor Operating Partnership LP)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries It (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the all requisite power and authority to own its property and assets and to carry on its business as now conducted and as proposed to be conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect Effect, and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to be delivered by which it is a party, and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, hereby (i) have been duly authorized by all necessary requisite corporate action and, if required, stockholder action, actions and do (ii) will not (iA) contravene violate (1) any provision of any law, statute, rule or regulation (including, without limitation, the charter Margin Regulations) or of its certificate of incorporation or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii2) violate any law or order of any Governmental Authority or (3) any provision of any indenture indenture, agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their its property is or may be bound or affectedbound, (iiiB) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (ivC) except for the Liens to be created under the Collateral Documents, result in the creation or imposition of any Lien lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have This Amendment has been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Amendment and the Credit Agreement isand the Notes, and any Notes when delivered hereunder will beas amended hereby, are the legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms terms.
(subjectd) No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the due execution, delivery, recordation, filing or performance by the Borrower of this Amendment.
(e) There are no actions or proceedings filed or (to its knowledge) investigations pending or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which question the validity, enforceability or legality of or seek damages in connection with this Amendment or the Credit Agreement and the Notes, as amended hereby, or any action taken or to be taken pursuant to this Amendment or the enforcement Credit Agreement and the Notes, as amended hereby, and no order or judgment has been issued or entered restraining or enjoining it from the execution, delivery or performance of remediesthis Amendment or the Credit Agreement and the Notes, as amended hereby, nor is there any action or proceeding which involves a probable risk of an adverse determination which would have any such effect; (ii) nor is there as of the date hereof any other action or proceeding filed or (to applicable bankruptcyits knowledge) investigation pending or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which involves a probable risk of a material adverse decision which would result in a Material Adverse Effect , reorganizationexcept as provided in the 2001 Form 10-K or materially restrict the ability of it to comply with its obligations under this Amendment or the Credit Agreement and the Notes, insolvency, moratorium and similar laws affecting creditors’ rights generally)as amended hereby.
Appears in 2 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants to Agent and each Lender as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) It has the all requisite power and authority to own under applicable law and under its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority organizational documents to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party Amendment, and to borrow perform its obligations under this Agreement.the Credit Agreement as amended hereby;
(b) The executionAll actions, delivery waivers and performance by consents (corporate, regulatory and otherwise) necessary or appropriate for it to execute, deliver and perform its obligations under this Amendment and to perform its obligations under the Borrower of this Credit Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powersas amended hereby, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.taken and/or received;
(c) No authorizationThis Amendment and the Credit Agreement, approval or other action byas amended by this Amendment, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, constitute the legal, valid and binding obligation of the Borrower it enforceable against the Borrower it in accordance with their respective terms (subjectthe terms, except as to the enforceability hereof or thereof may be affected by bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally, and the limitation of certain remedies by certain equitable principles of general applicability;
(d) The execution, delivery and performance of this Amendment, and the performance by the Borrower of its obligations under the Credit Agreement, as amended hereby, will not violate or contravene (a) any provision of any federal (including the Exchange Act), state, or local law, rule, or regulation (including Regulations T, U, and X of the Federal Reserve Board) binding on it, (b) any order of any domestic governmental authority, court, arbitration board, or tribunal binding on it, (c) the Governing Documents of Borrower or any Subscription Agreement, or any other contractual obligations between Borrower or Adviser and any Investor, or (d) any provisions of, result in a breach of, constitute (with the giving of notice or the lapse of time) a default under, or result in the creation of any Lien (other than a Permitted Lien) upon any of the Assets of the Borrower pursuant to, any Contractual Obligation of the Borrower;
(e) The representations and warranties contained in the Credit Agreement, the Security Agreement and the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of this Amendment, before and after giving effect to the same, as though made on and as of such date (except to the extent that such representations and warranties solely relate to an earlier date);
(f) No Event of Default or Unmatured Event of Default has occurred or is continuing on the date of this Amendment or would result from the transactions contemplated by this Amendment; and
(g) The Security Agreement continues to create a valid security interest in, and Lien upon, the Collateral, in favor of the Agent, for the benefit of the Lenders, which security interests and Liens are perfected in accordance with the terms of the Security Agreement and prior to all Liens other than Permitted Liens; and
(h) As of the date hereof, the incumbency certificate, resolutions and the Governing Documents of the Borrower delivered to Agent on the Closing Date remain true and correct without amendment thereto.
Appears in 2 contracts
Sources: Credit Agreement (Kayne DL 2021, Inc.), Credit Agreement (Kayne DL 2021, Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreementincorporation.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party (other than Subsidiaries of NML and Subsidiaries that are joint ventures where the Investment by all Loan Parties in such joint venture is less than $1,000,000), showing as of the date of this Agreement (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, on the date of this Agreement and the percentage of the outstanding shares of each such class 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 as of the date of 48 45 this Agreement. As of the date of this Agreement, 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 such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except as may be set forth in such Schedule.
(c) The execution, delivery and performance by the Borrower each Loan Party of this Agreement Agreement, the Notes and any Notes each other Loan Document to which it is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the such Loan Party's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerbylaws, (ii) violate any law or order (including, without limitation, the Securities Exchange Act of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which 1934, as amended, and the Borrower or any Subsidiary Racketeer Influenced and Corrupt Organizations Chapter of the Borrower is a party 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 by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement 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 (iv) result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of the Borrowerits Subsidiaries.
(cd) No authorization, 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 (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement Agreement, the Notes or any Notes other Loan Document to which it is or is to be delivered by ita party, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made thereby or obtained and are in full force and effect(ii) the exercise by the Agent or any Lender of its rights under the Loan Documents.
(de) This Agreement has been, and any each of the Notes to be delivered by it and each other Loan Document when delivered hereunder will have been, duly executed and delivered by the Borrowereach Loan Party party thereto. This Agreement is, and any each of the Notes and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms.
(f) The Consolidated and consolidating balance sheets of the Borrower enforceable and its Subsidiaries as at December 31, 1994, the related Consolidated and consolidating statements of income and the related Consolidated statement of cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, accompanied by an opinion of Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, independent public accountants on such Consolidated statements, and the Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as at June 30, 1995, the related Consolidated and consolidating statements of income and the related Consolidated statement of cash flows of the 49 46 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 each Lender, fairly present, subject, in the case of said balance sheet as at June 30, 1995, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated and consolidating financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated and consolidating results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 1994, there has been no Material Adverse Change.
(g) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i)(A) other than with respect to any Environmental Action, could be reasonably expected to have a Material Adverse Effect or (B) solely with respect to any Environmental Action, would be reasonably expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby.
(h) The operations and properties of the Borrower and each of its Subsidiaries comply with all applicable Environmental Laws and Environmental Permits and all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without material ongoing obligations or costs, except to the extent any failure to so comply or past non-compliance, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, and no circumstances exist that would be reasonably expected to (i) form the basis of an Environmental Action against the Borrower or any of its Subsidiaries or any of their properties that would 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 would have a Material Adverse Effect.
(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). Following the application of the proceeds of each Advance, not more than 25% of the value of the assets of the Borrower, or of the Borrower and its Subsidiaries, which are subject to any limitation set forth in Section 5.02(a), Section 5.02(b) or Section 5.02(f), will be such margin stock.
(j) The Information Memorandum and all other information, exhibits and reports furnished by any Loan Party to the Agent and the Lenders in connection with the negotiation of or pursuant to the Loan Documents, taken as a whole, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were 50 47 made, not misleading (it being understood that the Borrower's representation as to any projections included in the foregoing are that such projections were prepared in good faith on the basis of the assumptions stated therein, which assumptions were reasonable at the time of delivery of such projections, and that actual results during the period or periods covered by such projections may differ therefrom).
(k) Neither the business nor the properties of any Loan Party or any of its Subsidiaries are 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 could be reasonably expected to have a Material Adverse Effect (it being understood that, to the extent any such expected Material Adverse Effect would not arise except by reason of noncompliance with Environmental Laws or Environmental Permits or other circumstances described in Section 4.01(h), Section 4.01(h) rather than this Section 4.01(k) shall govern).
(l) Each Loan Party and each of its Subsidiaries and Affiliates 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, the failure to do any of which would have a Material Adverse Effect.
(m) Set forth on Schedule 4.01(m) hereto is a complete and accurate list, as of the date of this Agreement, of each taxable year of each Loan Party and each of its Subsidiaries and Affiliates for which Federal income tax returns have been filed and for which the expiration of the applicable statute of limitations for assessment or collection has not occurred by reason of extension or otherwise (an "Open Year").
(n) The aggregate unpaid amount, as of the date of this Agreement, of adjustments to the Federal income tax liability of each Loan Party and each of its Subsidiaries and Affiliates proposed by the Internal Revenue Service with respect to Open Years does not exceed $1,000,000. No issues have been raised by the Internal Revenue Service in respect of Open Years that, in the aggregate, could be reasonably expected to have a Material Adverse Effect.
(o) The aggregate unpaid amount, as of the date of this Agreement, of adjustments to the state, local and foreign tax liability of each Loan Party and its Subsidiaries and Affiliates proposed by all state, local and foreign taxing authorities (other than amounts arising from adjustments to Federal income tax returns) does not exceed $1,000,000 in excess of reserves shown as liabilities on the balance sheet of such Person. No issues have been raised by such taxing authorities that, in the aggregate, could be reasonably expected to have a Material Adverse Effect. 51 48
(p) No Loan Party 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. No other Subsidiary of the Borrower is required to be registered under such Act.
(q) Set forth on Schedule 4.01(q) hereto is a complete and accurate list of all Material Contracts of each Loan Party as of the date of this Agreement, showing as of the date of this Agreement the parties, subject matter and term thereof. Each Material Contract has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as otherwise indicated on such Schedule, and is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with their respective terms its terms, in each case, where the failure to do so could reasonably be expected to have a Material Adverse Effect, and there exists no default under any Material Contract by any party thereto which could reasonably be expected to have a Material Adverse Effect.
(subjectr) No material ERISA Event has occurred or is reasonably expected to occur with respect to any Plan.
(s) As of the last annual actuarial valuation date, the funded current liability percentage, as defined in Section 302(d)(8) of ERISA, of each Plan exceeds 90% and there has been no material adverse change in the funding status of any Plan since such date.
(t) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability in excess of $500,000 to any Multiemployer Plan.
(u) 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 in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(v) Except as set forth in the financial statements referred to in this Section 4.01 and in Section 5.01(m), 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.
(w) All commitments under the Existing Credit Agreement have been terminated in whole, or irrevocable notice to terminate such commitments under the Existing Credit Agreement shall be given contemporaneously with the execution of this Agreement, pursuant to the enforcement terms thereof, and the Borrower has delivered to the Agent certified copies of remedies, irrevocable notices effecting such termination pursuant to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).52 49
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby, on and as of the date hereof and on and as of the date of each Initial Funding, respectively, represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a duly organized, organized limited liability company and is validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, Delaware and (ii) has the all requisite limited liability company power and authority to enter into the Transaction Documents, Ancillary Documents and Completion Bonds, in each case, to which it is a party, to perform its Obligations thereunder, to own or lease and operate its property and assets properties and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect contemplated hereby and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreementthereby.
(b) The execution, delivery and performance by the Borrower of its Obligations under this Agreement Agreement, the other Transaction Documents, the Ancillary Documents and any Notes Completion Bonds, in each case, to be delivered by which it is a party, and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder limited liability company action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower’s Constitutive Documents, (ii) violate any law or order of any Governmental Authority applicable Law or any provision applicable writ, injunction, determination or award to which the Borrower is a party except where such violations, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (iii) conflict with or result in the breach of, or constitute a default under, any loan agreement, indenture, mortgage, deed of any indenture trust, lease or other material agreement or financing instrument to which the Borrower or any Subsidiary of the Borrower is a party other than where such conflict or by which breach has been waived, (iv) conflict with or result in the breach of, or constitute a default under, any of them contract or agreement affecting the Borrower or any of their property is or may be bound or affected, its properties (other than those described in clause (iii) conflict withabove), result in a except where such conflict, breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenturewill not impair the Film Rights, agreement or other instrument or (ivv) result in or require the creation or imposition of any Lien Adverse Claim upon or with respect to any property of its properties other than Permitted Liens. The Borrower is not in violation of any Law, writ, injunction, determination or assets now owned award or hereafter acquired by the Borrower in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or any Subsidiary of the Borrowerother instrument that could reasonably be expected to have a Material Adverse Effect.
(c) No authorization, approval All material authorizations or approvals of and other action actions by, and no notice all notices to or filing and filings with, any Governmental Authority is governmental authority or regulatory body or any other third Person that are required to be obtained, taken, given or made by the Borrower under any applicable Law or any applicable writ, injunction, determination, award, contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument of the type referred to in Section 6.01(b) above for (i) the due executionexecution and delivery by the Borrower of, delivery and the performance by the Borrower of this Agreement its Obligations under, each of the Transaction Documents, Ancillary Documents and Completion Bonds, in each case, to which it is a party, or any Notes to be delivered by itfor its grant of the security interest hereunder, or for the consummation of the other transactions contemplated hereby and thereby(ii) for the exercise by the Administrative Agent, except for such authorizationsthe Collateral Agent or any other Indemnified Party of its rights hereunder, approvals, actions, notices or filings that have been duly obtained, taken, given or made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes each other Transaction Document, Ancillary Document and Completion Bond, in each case, to which it is or will be delivered by it a party, has been, or when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement isconstitutes, and any Notes each other Transaction Document, Ancillary Document and Completion Bond, in each case, to which it is or will be a party, constitutes, or when delivered hereunder will beconstitute, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectits terms, except as to enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generallygenerally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
Appears in 1 contract
Sources: Credit and Security Agreement (Marvel Enterprises Inc)
Representations and Warranties of the Borrower. The As of the Sixth Amendment Effective Date, the Borrower represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, indicated in the case recital of any such Subsidiary, where the failure so parties to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to which it is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the Borrower's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law law, rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of any indenture order, writ, judgment, injunction, decree, determination or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement 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 (iv) 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 property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 or performance by the Borrower of this Agreement Amendment or any Notes of the Loan Documents, as amended hereby, to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effecta party.
(d) This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isAmendment and each of the other Loan Documents, and any Notes when delivered hereunder will beas amended hereby, to which the Borrower is a party are legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)terms.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes Waiver and the Loan Documents, as amended hereby, to which it is or is to be delivered by it and the consummation of the transactions contemplated thereby are a party, is within the Borrower’s 's corporate powers, have has been duly authorized by all necessary corporate action and, if required, stockholder action, and do does not (i) contravene the Borrower's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law (including, without limitation, the Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of any indenture order, writ, judgment, injunction, decree, determination or other material agreement award, binding on or instrument to which affecting the Borrower or any Subsidiary of the Borrower is a party or by which any of them its Subsidiaries or any of their property is or may be bound or affectedproperties, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting the Borrower, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 delivery, recordation, filing or performance by the Borrower of this Agreement Amendment and Waiver or any Notes of the Loan Documents, as amended hereby, to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effecta party.
(d) With the exception of the Section 2.06(b)(ii) Event of Default described herein, there are no other Defaults or Events of Default by Borrower as of the date hereof.
(e) This Agreement Amendment and Waiver has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isAmendment and Waiver and each of the Loan Documents, and any Notes when delivered hereunder will beas amended hereby, to which the Borrower is a party are legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms (subjectterms, except as to the enforcement of remediesenforceability may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvencymoratorium or other laws relating to or limiting creditors' rights or by equitable principles generally.
(f) There is no action, moratorium suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries (including, without limitation, any Environmental Action) pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment and similar laws affecting creditors’ rights generally)Waiver or any of the Loan Documents, as amended hereby.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2004, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, all audited and certified by Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its Subsidiaries on a Consolidated basis as of the dates thereof required to be reflected or disclosed therein in accordance with GAAP.
(f) There has been no Material Adverse Change since December 31, 2004.
(g) Except as set forth in the financial statements referred to in subsection (e) of this Section 4.01, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries or any business, property or rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, is reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation (including, without limitation, any ERISA or environmental law, rule or regulation), or in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default is reasonably expected to result in a Material Adverse Effect.
(h) Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Advance will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which entails a violation of, or which is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X thereof.
(i) Neither the Borrower nor any of its Subsidiaries is (i) an “investment company”, as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended or (ii) a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended.
(j) The Borrower will use the proceeds of the Advances as a commercial paper backstop and for other lawful general corporate purposes.
(k) Each of the Borrower and its Subsidiaries has filed or caused to be filed all federal income tax and all other material state and local tax returns required to have been filed by it and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, except taxes that are otherwise permitted to remain unpaid in accordance with the provisions of Section 5.01(b).
(l) All information, reports, financial statements, exhibits or schedules prepared or furnished by or on behalf of the Borrower to the Agent, Arrangers or any Lender in connection with the negotiation of this Agreement or delivered pursuant hereto contained, contains or will contain no material misstatement of fact and did not omit, does not omit and will not omit 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.
Appears in 1 contract
Representations and Warranties of the Borrower. The To induce the Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Agent and the Lenders (which representations and warranties shall be made on and as followsof the Effective Date) that after giving effect to the amendments set forth herein:
(a) Each of the 3.1. The Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority and the legal right to executeexecute and deliver this Amendment, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) perform the transactions contemplated hereby. The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby Amendment, (a) are within the Borrower’s corporate powers, power; (b) have been duly authorized by all necessary corporate action and, if required, stockholder or other action, and ; (c) do not (i) contravene the charter or other constitutive documents or by-laws of cause the Borrower or any Subsidiary other Credit Party to be in default under (i) any provision of the Borrower’s or such Credit Party’s articles or certificate of incorporation or bylaws, (ii) violate any law contractual restriction contained in any indenture, loan or order of any Governmental Authority or any provision of any indenture credit agreement, lease, mortgage, security agreement, bond, note or other material agreement or instrument to which binding on or affecting the Borrower or any Subsidiary of the Borrower is a party such Credit Party or by which any of them its property, or any of their property is or may be bound or affected, (iii) conflict withany law, result in a breach of rule, regulation, order, license requirement, writ, judgment, award, injunction, or constitute decree applicable to, binding on or affecting the Borrower or such Credit Party or its property; (alone or with notice or lapse of time or bothd) a default under any such indenture, agreement or other instrument or (iv) will not result in the creation or imposition of any Lien upon or with respect to any of the property or assets now owned or hereafter acquired by of the Borrower or such Credit Party or any Subsidiary thereof other than those in favor of the Borrower.
Agent or any Lender, all pursuant to the Loan Documents; and (ce) No authorization, do not require the consent or approval or other action by, and no notice to or filing with, of any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itother Person, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that other than those which have been duly obtained, made or obtained complied with and which are in full force and effect.
(d) 3.2. This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isEach of this Amendment, and any Notes when delivered hereunder will be, the Loan Documents (as amended or modified hereby) to which each Credit Party is a party is the legal, valid and binding obligation of the Borrower such Credit Party, enforceable against the Borrower such Credit Party in accordance with their respective terms (its terms, subject, as to the enforcement of remediesenforceability, to (A) any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or other similar laws now or hereafter in effect relating to or affecting the enforceability of creditors’ rights generally)generally and (B) general equitable principles, whether applied in a proceeding at law or in equity, and is in full force and effect.
3.3. The representations and warranties of each Credit Party contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are true and correct in all material respects on and as of the date hereof as though made on and as of the date hereof.
3.4. No Default or Event of Default has occurred and is continuing or could reasonably be expected to occur after giving effect to the transactions contemplated hereby. Amendment No. 12 to Second Amended and Restated Credit Agreement
Appears in 1 contract
Sources: Credit Agreement
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries It (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the all requisite power and authority to own its property and assets and to carry on its business as now conducted and as proposed to be conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect Effect, and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to be delivered by which it is a party, and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, hereby (i) have been duly authorized by all necessary requisite corporate action and, if required, stockholder action, actions and do (ii) will not (iA) contravene violate (1) any provision of any law, statute, rule or regulation (including, without limitation, the charter Margin Regulations) or of its certificate of incorporation or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii2) violate any law or order of any Governmental Authority or (3) any provision of any indenture indenture, agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their its property is or may be bound or affectedbound, (iiiB) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (ivC) except for the Liens created under the Collateral Documents, result in the creation or imposition of any Lien lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have This Amendment has been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Amendment and the Credit Agreement isand the Notes, and any Notes when delivered hereunder will beas amended hereby, are the legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms terms.
(subjectd) No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the due execution, delivery, recordation, filing or performance by the Borrower of this Amendment.
(e) There are no actions or proceedings filed or (to its knowledge) investigations pending or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which question the validity, enforceability or legality of or seek damages in connection with this Amendment or the Credit Agreement and the Notes, as amended hereby, or any action taken or to be taken pursuant to this Amendment or the enforcement Credit Agreement and the Notes, as amended hereby, and no order or judgment has been issued or entered restraining or enjoining it from the execution, delivery or performance of remediesthis Amendment or the Credit Agreement and the Notes, as amended hereby, nor is there any action or proceeding which involves a probable risk of an adverse determination which would have any such effect; (ii) nor is there as of the date hereof any other action or proceeding filed or (to applicable bankruptcyits knowledge) investigation pending or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which involves a probable risk of a material adverse decision which would result in a Material Adverse Effect , reorganizationexcept as provided in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, insolvency2003, moratorium or materially restrict the ability of it to comply with its obligations under this Amendment or the Credit Agreement and similar laws affecting creditors’ rights generally)the Notes, as amended hereby.
Appears in 1 contract
Sources: Five Year Revolving Credit Facility Agreement (Avaya Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows::
(a) Each of the The Borrower and its Subsidiaries (i) is a Simplified Stock Corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) Local Country and has the all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own own, lease and operate its property and assets prope11ies and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect conducted and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is as proposed to be a party and to borrow under this Agreement.conducted.
(b) The execution, delivery and performance by the Borrower B01rnwer of this Agreement and any Notes to be delivered by it each other Loan Document, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s corporate 's organizational powers, have been duly authorized by all necessary corporate action and, if required, stockholder organizational action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower's Constituent Documents, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary applicable law, rule, regulation (including, without limitation, Regulation X of the Borrower is a party Boards of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of any contractual restriction binding on or constitute (alone affecting the Borrower or with notice or lapse any of time or both) a default under any such indentureits prope11ies, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to on any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower..
(c) No authorizationExcept for the registration of this Agreement with the Colombian Central Bank, 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 (i) the due execution, delivery and performance by the Borrower of this Agreement any Loan Document to which it is or any Notes is to be delivered a party or (ii) the exercise by it, or for the consummation Lender of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.its rights under any Loan Document.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder has been or will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms terms.
(i) The Consolidated balance sheet of the Borrower as at December 31, 2018,and the related Consolidated statements of income and cash flows of the Borrower for the fiscal year then ended, accompanied by an opinion of Ernst & Young Audit S.A.S. independent public accountants, and included in the latest report filed by the Borrower and the Consolidated balance sheet of the Borrower as at August 31, 2018, and the related statements of income and cash flows of the Borrower for the nine months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to the Lender, fairly present, subject, in the case of said balance sheet as at August 31, 2018, 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 as at such dates and the Consolidated results of the operations of the Borrower for the periods ended on such dates, all in accordance with Applicable Accounting Rules consistently applied. The Borrower has no liabilities, obligations or commitments of a type required to be reflected on a balance sheet prepared in accordance with Applicable Accounting Rules except: (i) those which are adequately reflected or reserved against in the Consolidated balance sheet as at December 31, 2018 and (ii) those which have been incurred in the ordinary course of business since December 31, 2018 and which are not material in amount.
(ii) Since September 30, 2019, there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby.
(g) 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 U.S. Federal Reserve System), and no proceeds of the Advance will be used for any purpose which violates or is inconsistent with the provisions of Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or to refinance or refund Debt originally incurred for such purpose.
(h) The Borrower has filed, has caused to be filed or has been included in all Tax returns (national, departmental, local, municipal and foreign) required to be filed and has paid all Taxes due with respect to the enforcement years covered by such returns. The charges, accruals and reserves on the books of remediesthe Borrower and its Subsidiaries in respect of Taxes or other governmental charges are adequate in accordance with Applicable Accounting Rules.
(i) The Borrower is in compliance with all Applicable Laws and requirements of all Governmental Authorities (including, without limitation, all governmental licenses, certificates, permits, franchises and other governmental authorizations and approvals necessary to the ownership of its properties or to the conduct of its business, Environmental Laws, and laws with respect to social security and pension fund obligations) , in each case except to the extent that failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
(i) The Borrower have good and sufficient legal title to all its assets and properties that are material to its businesses, except for minor defects in title that do not interfere with their ability to conduct their respective businesses as currently conducted or to utilize such properties for their intended purposes, and, to applicable bankruptcythe best of its knowledge, reorganizationnone of such assets or properties is subject to any Liens, insolvencyexcept those listed on Schedule 4.0l(z) and as otherwise permitted by Section 5.02(a).
(ii) The properties of the Borrower are insured with financially sound and reputable insurance companies (not being Affiliates thereof), moratorium in such amounts, with such deductibles and covering such risks as are customarily maintained by Persons engaged in a similar laws affecting creditors’ rights generally).business, owning similar properties and operating in similar localities where the Borrower and its Subsidiaries maintain their principal places of operations.
Appears in 1 contract
Sources: Credit Agreement (Pricesmart Inc)
Representations and Warranties of the Borrower. The To induce the Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Agent and the Lenders (which representations and warranties shall be made on and as followsof the Effective Date) that after giving effect to the amendments set forth herein:
(a) Each of the 3.1. The Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority and the legal right to executeexecute and deliver this Amendment, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) perform the transactions contemplated hereby. The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby Amendment, (a) are within the Borrower’s corporate powers, power; (b) have been duly authorized by all necessary corporate action and, if required, stockholder or other action, and ; (c) do not (i) contravene the charter or other constitutive documents or by-laws of cause the Borrower or any Subsidiary other Credit Party to be in default under (i) any provision of the Borrower’s or such Credit Party’s articles or certificate of incorporation or bylaws, (ii) violate any law contractual restriction contained in any indenture, loan or order of any Governmental Authority or any provision of any indenture credit agreement, lease, mortgage, security agreement, bond, note or other material agreement or instrument to which binding on or affecting the Borrower or any Subsidiary of the Borrower is a party such Credit Party or by which any of them its property, or any of their property is or may be bound or affected, (iii) conflict withany law, result in a breach of rule, regulation, order, license requirement, writ, judgment, award, injunction, or constitute decree applicable to, binding on or affecting the Borrower or such Credit Party or its property; (alone or with notice or lapse of time or bothd) a default under any such indenture, agreement or other instrument or (iv) will not result in the creation or imposition of any Lien upon or with respect to any of the property or assets now owned or hereafter acquired by of the Borrower or such Credit Party or any Subsidiary thereof other than those in favor of the Borrower.
Agent or any Lender, all pursuant to the Loan Documents; and (ce) No authorization, do not require the consent or approval or other action by, and no notice to or filing with, of any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itother Person, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that other than those which have been duly obtained, made or obtained complied with and which are in full force and effect.
(d) 3.2. This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isEach of this Amendment, and any Notes when delivered hereunder will be, the Loan Documents (as amended or modified hereby) to which each Credit Party is a party is the legal, valid and binding obligation of the Borrower such Credit Party, enforceable against the Borrower such Credit Party in accordance with their respective terms (its terms, subject, as to the enforcement of remediesenforceability, to (A) any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or other similar laws now or hereafter in effect relating to or affecting the enforceability of creditors’ rights generally)generally and (B) general equitable principles, whether applied in a proceeding at law or in equity, and is in full force and effect.
3.3. The representations and warranties of each Credit Party contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are true and correct in all material respects on and as of the date hereof as though made on and as of the date hereof.
3.4. No Default or Event of Default has occurred and is continuing or could reasonably be expected to occur after giving effect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (Synnex Corp)
Representations and Warranties of the Borrower. The In order to induce the Lenders to make the Revolving Credit Advances hereunder, the Borrower represents makes the following representations and warrants as followswarranties to the Lenders:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreementincorporation.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any the Notes to be delivered executed by it and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not contravene (i) contravene the such Loan Party's charter or other constitutive documents or by-laws (or other equivalent organizational documents) or (ii) any law or any material contractual restriction binding on or affecting such Loan Party or, to the knowledge of such Loan Party's chief executive officer, chief financial officer, treasurer or controller or any vice president, any other contract the Borrower breach of which would limit the ability of any Loan Party to perform its obligations under this Agreement or the Notes. No Loan Party nor any Subsidiary of the Borrower, (ii) violate any law or order a Loan Party is in violation of any Governmental Authority law, rule, regulation, order, writ, judgment, injunction, decree, determination or any provision award applicable to it, or in breach of any indenture indenture, agreement, lease or other material agreement instrument, the violation or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) which is reasonably likely to have a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the BorrowerMaterial Adverse Effect.
(c) No authorization, 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 any Loan Party of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectNotes.
(d) This Agreement has been, and any each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement has been duly executed and delivered by each Guarantor. Assuming that this Agreement has been duly executed by the Administrative Agent and each of the Lenders, this Agreement is, and any each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms terms. Assuming that this Agreement has been duly executed by the Administrative Agent and each of the Lenders, this Agreement is the legal, valid and binding obligation of each Guarantor enforceable against each Guarantor in accordance with its terms.
(subjecte) The Consolidated balance sheet of the Borrower (or its predecessor entities) and its Subsidiaries as at December 31, 2000, and the related Consolidated statements of income and cash flows of the Borrower (or its predecessor entities) and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LP, independent public accountants, copies of which have been furnished to each Lender, fairly and accurately represent the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) There is no pending or (to the knowledge of any Loan Party) threatened action or proceeding, including, without limitation, any Environmental Action, affecting any Loan Party or any of its Subsidiaries before any court, governmental agency or arbitrator that is initiated by any Person other than a Lender in its capacity as a Lender that purports to affect the legality, validity or enforceability of this Agreement or any Note.
(g) Neither the Borrower nor any of its Subsidiaries is an Investment Company, as such term is defined in the Investment Company Act of 1940, as amended.
(h) No Loan Party is 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.
(i) As of the date hereof, the Borrower has no direct or indirect Significant Subsidiaries, except as set forth in Schedule 4.01(i).
(j) The Borrower and the Guarantors are Solvent.
(k) Each Loan Party and each of its respective Subsidiaries have filed all federal, state, commonwealth and local tax returns required to be filed and have paid all taxes shown thereon to be due, including interest and penalties, or have provided adequate reserves therefor; no unpaid or uncontested assessments have been made against any Loan Party or any Subsidiary of any Loan Party by any taxing authority, nor has any unpaid or uncontested penalty or deficiency been assessed by any such authority, and all contested assessments have been disclosed to the enforcement Administrative Agent and adequate reserves have been made therefor. Such tax returns properly reflect the income and taxes of remedieseach respective Loan Party and its Subsidiaries for the periods covered thereby, subject only to reasonable adjustments required by the corresponding taxing authorities upon audit or other adjustments not reasonably likely to have a Material Adverse Effect.
(l) No Loan Party is subject to any labor dispute with its employees which is reasonably likely to have a Material Adverse Effect.
(m) No written information, exhibit or report furnished by any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of this Agreement contained any material misstatement of fact or omitted to state a material fact necessary to make the statements contained therein not misleading.
(n) The operations and properties of each Loan Party comply in all material respects with all applicable bankruptcyEnvironmental Laws; all necessary Environmental Permits have been obtained and are in effect for the operations and properties of each Loan Party, reorganizationand each Loan Party is in compliance in all material respects with all such Environmental Permits; none of the operations or properties of any Loan Party is subject to any Environmental Action alleging the violation of any Environmental Law; none of the operations of any Loan Party are the subject of a federal, insolvencystate, moratorium and similar laws affecting creditors’ rights generally)commonwealth or local investigation evaluating whether any remedial action is needed to respond to a release of any hazardous or toxic waste, substance or constituent, or any other substance into the environment, which Environmental Action or remedial action is reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Sources: Revolving Credit Agreement (Telecomunicaciones De Puerto Rico Inc)
Representations and Warranties of the Borrower. The To induce the Banks and the Agent to execute and deliver this Amendment (which representations and warranties shall survive the execution and delivery of this Amendment), the Borrower represents and warrants as followsto the Agent and the Banks that:
(a) Each of the Borrower this Amendment has been duly authorized, executed and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, Amendment constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectits terms, subject to limitations as to the enforcement of remediesenforceability which might result from bankruptcy, to applicable bankruptcyinsolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally;
(b) the Credit Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject to limitations as to enforceability which might result from bankruptcy, insolvency, reorganization, moratorium and or similar laws affecting or equitable principles relating to or limiting creditors’ ' rights generally;
(c) the execution, delivery and performance by the Borrower of the Amendment (i) have been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) do not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which it is a party or by which any of its properties or assets are or may be bound, or (B) result in a breach of or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 4(c);
(d) as of the date hereof, no Default or Event of Default has occurred which either (a) is continuing or (b) pursuant to which the Agent and the Banks have not agreed to temporarily forbear from exercising their remedies as set forth in Section 3 of this Amendment; and
(e) all the representations and warranties contained in Article IV of the Credit Agreement are true and correct in all material respects with the same force and effect as if made by the Borrower on and as of the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Norstan Inc)
Representations and Warranties of the Borrower. The In order to induce the Lenders to make the Advances hereunder, the Borrower represents makes the following representations and warrants as followswarranties to the Lenders, each and all of which shall survive the execution and delivery of this Agreement:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction Commonwealth of its organizationPuerto Rico, except, in and the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) Borrower has the all requisite power and authority possesses all franchises and rights necessary for it to own its property and assets properties and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect conducted and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is as proposed to be a party and to borrow under this Agreementconducted or carried on.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes the Loan Documents to which the Borrower is or will be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powersa party, have been duly authorized by all necessary corporate action and, if required, stockholder action, of the Borrower and do not and will not (iA) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary Constituent Documents of the Borrower, (iiB) violate in any law or order of any Governmental Authority or material respect any provision of any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, (C) constitute or result in a breach of or constitute a default under any indenture or loan or credit agreement or any other material agreement agreement, lease or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them it or any of their property is or its properties may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (ivD) result in in, or require, the creation or imposition of any Lien mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature (other than as required hereunder) upon or with respect to any property or assets of the properties now owned or hereafter acquired by the Borrower. The Borrower is not in default under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or in breach of any Subsidiary such indenture, agreement, lease or instrument to which it is a party, the violation or breach of the Borrowerwhich could have a Material Adverse Effect.
(c) No authorization, 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 the Borrower of this Agreement each of the Loan Documents to which it is or any Notes to will be delivered by ita party, or for the consummation of the transactions contemplated hereby or thereby, (ii) the grant by the Borrower of the Liens granted by it pursuant to any Loan Document, (iii) the perfection or maintenance of any Liens created by any Loan Document (including the first priority nature thereof), except for the filing of financing statements or (iv) the exercise by the Administrative Agent or any Lender of its rights and therebyremedies under the Loan Documents. The Borrower has all licenses, permits, rights, variances and other governmental approvals that are necessary to perform its various obligations under the Loan Documents, to own and operate its properties and assets and to conduct its business as currently conducted, except for such authorizationslicenses, approvalspermits, actionsrights, notices variances and other governmental approvals the absence of which would not have a Material Adverse Effect.
(d) This Agreement is, and each other Loan Document to which the Borrower is or filings will be a party when delivered hereunder will be, legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms, except to the extent enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditor’s rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law).
(e) The individual and consolidated audited balance sheets and statements of income of the Borrower and its Subsidiaries the period ended on December 31, 2015 and related statements of income and retained earnings for the Fiscal Year then ended, complete copies of which have been furnished to the Administrative Agent, fairly present the financial condition of each such Person as of such date, all in accordance with Generally Accepted Accounting Principles consistently applied, and since that date there has been no Material Adverse Change in such financial condition or operations.
(f) The unaudited interim balance sheet and statement of income of the Borrower and related statement of income and retained earnings for the period ended on June 30, 2016 forming part of Borrower’s Form 10-Q Report filed on August 5, 2016, fairly present the financial condition of each such Person as of such date, all in accordance with Generally Accepted Accounting Principles consistently applied, subject to normal year-end audit adjustments and since the date of such statements there has been no Material Adverse Change.
(g) There is no pending or threatened action or proceeding, other than those described in Borrower’s Forms 10-K and 10Q Reports, affecting the Borrower before any court, governmental agency or arbitrator which, (i) if adversely determined, is reasonably likely to result in a Material Adverse Effect, or (ii) purports to affect the legality, validity or enforceability of any material provision of this Agreement, any Note or any other Loan Document, or the consummation of the transactions contemplated hereby or thereby.
(h) No proceeds of any Advance will be used to acquire any security of a class that is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(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), 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.
(j) Neither the Borrower nor any Subsidiary thereof has or has had at any time an employee benefit plan or other plan maintained for the employees of the Borrower or Subsidiary thereof and covered by Title IV of ERISA (hereinafter referred to as a “Plan”), other than those listed in Schedule 4.1(j).
(k) Except as set forth in Schedule 4.1(k), as of the Closing Date the Borrower has no direct or indirect Subsidiaries and the Borrower is not engaged in any joint venture or partnership with any Person.
(l) The Borrower and each of its Subsidiaries is, and after giving effect to the consummation of the transactions contemplated by this Agreement and the other Loan Documents will be, Solvent.
(m) The Borrower and each Subsidiary thereof has filed all federal, state, commonwealth and local tax returns required to be filed by it and has paid all taxes shown thereon to be due, including interest and penalties, or has provided adequate reserves therefor; no unpaid or uncontested assessments have been made against the Borrower or Subsidiary thereof by any taxing authority, nor has any penalty or deficiency been assessed by any such authority, and all contested assessments have been disclosed to the Administrative Agent and adequate reserves have been made therefor. Such tax returns properly reflect the income and taxes of the Borrower and Subsidiary thereof for the periods covered thereby, subject only to reasonable adjustments required by the corresponding taxing authorities upon audit and having no Material Adverse Effect.
(n) No Reportable Event has occurred with respect to any Plan of the Borrower, and the Borrower does not have any current or past service liability under any Plan.
(o) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan of the Borrower or any Subsidiary thereof.
(p) Neither the Borrower nor any Subsidiary thereof has not incurred any actual withdrawal liability under ERISA with respect to any Plan.
(q) Neither the business nor the properties of the Borrower or any Subsidiary thereof are affected by any labor dispute which could reasonably be expected to have a Material Adverse Effect.
(r) No written information, exhibit or report furnished by the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this Agreement, (i) contained any material misstatement of fact, or (ii) together with the information set forth in the filings made by the Borrower with the Securities and Exchange Commission that are publicly available online, omitted to state a material fact or any fact necessary to make the statements contained therein not misleading.
(s) The chief executive office, the principal place of business and all other places of business of the Borrower, and the place where the Borrower maintains all records relating to the Collateral at such other locations, are as specified on Schedule 4.1(s). Except as set forth on Schedule 4.1(s) to this Agreement, the Borrower has no other place of business or maintains Collateral, or records relating thereto, at any other location.
(t) During the ten (10) years preceding the date of this Agreement, the Borrower has not been known as or used any corporate name or any trade of fictitious name, except as disclosed on Schedule 4.1(t) hereto.
(u) The use of the proceeds of each Advance made, or to be made, by the Lenders hereunder is, and will continue to be, a legal and proper corporate use (duly authorized by the Borrower’s board of directors and the members thereof, if required) of the Borrower and such use is, and will continue to be, consistent with all applicable laws and regulations.
(v) The operations and properties of the Borrower and each Subsidiary thereof comply in all material respects with all applicable Environmental Laws; all necessary Environmental Permits have been obtained and are in effect for the operations and properties of the Borrower and each Subsidiary thereof, and the Borrower and each Subsidiary thereof is in compliance in all material respects with all such Environmental Permits; none of the operations or properties of the Borrower or any Subsidiary thereof are subject to any Environmental Action alleging the violation of any Environmental Law; no circumstances exist that could form the basis of an Environmental Action against the Borrower, any Subsidiary thereof or any of their properties; neither the operations of the Borrower nor of any Subsidiary thereof are the subject of a federal, state, commonwealth or local investigation evaluating whether any remedial action is needed to respond to a release of any hazardous or toxic waste, substance or constituent, or any other substance into the environment; neither the Borrower nor any Subsidiary thereof has filed any notice under any Environmental Law indicating past or present treatment, storage or disposal of a hazardous waste or reporting a spill or release of a hazardous or toxic waste, substance or constituent, or any other substance into the environment; and neither the Borrower nor any Subsidiary thereof has any contingent liability in connection with any release of any hazardous or toxic waste, substance or constituent, or any other substance into the environment which contingent liability, if liquidated, would not be adequately covered (in the reasonable determination of the Majority Lenders) by insurance or other indemnification rights or which may have a Material Adverse Effect, or the value of any Collateral.
(w) The Realty and the current and contemplated uses of the Realty are in compliance in all material respects with all applicable federal, state and municipal laws, rules, regulations and ordinances, applicable restrictions, zoning ordinances, building codes and regulations, building lines and easements, including, without limitation, the Americans with Disabilities Act of 1990, all commonwealth and local laws or ordinances related to handicapped access, and any statute, rule, regulation, ordinance, or order of governmental bodies or regulatory agencies, or any order or decree of any court adopted or enacted with respect thereto; no Governmental Authority having jurisdiction over any aspect of the Realty has made a written claim or determination (or, to the best of the Borrower’s knowledge, any claim or determination that is not in writing) that there is any such violation; the Realty is not included in any area identified by the Secretary of Housing and Urban Development under the National Flood Insurance Act of 1968, as amended, as an area having special flood hazards; and all material permits, licenses, endorsements, approvals and the like which are necessary for the operation of the Realty as currently operated have been issued and are in full force and effect.
(dx) This Agreement has beenSet forth on Schedule 4.1(x) hereto is a complete and accurate list of all Debt outstanding on the date hereof of the Borrower, and showing as of the date set forth thereon the principal amount outstanding thereunder.
(y) No Loan Party nor any Notes to be delivered by it when delivered hereunder will have beenof their respective Subsidiaries is an “investment company,” or an “affiliated person” of, duly executed and delivered or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the 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, nor the consummation of the other transactions contemplated hereby, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(z) Neither the Borrower or any Subsidiary thereof is in default in any material respect under any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect or under any indenture or loan or credit agreement or any other agreement, lease or instrument to which the Borrower or its Subsidiary is a party or by which it or its properties may be bound or affected.
(aa) The Borrower has good, marketable and insurable fee simple (pleno dominio) title to the Realty, free and clear of all Liens, other than Permitted Liens and Liens created or permitted by the Loan Documents. This Agreement is, (bb) Set forth on Schedule 4.1(bb) hereto is a complete and any Notes when delivered hereunder will be, accurate list as of the date hereof of all Leases. The Borrower and each tenant under the Leases have the power and authority to enter into the corresponding Lease; the Leases have been duly authorized by all necessary action of the Borrower and such tenants; and each Lease is the legal, valid and binding obligation of the Borrower enforceable against and the Borrower tenant thereunder in accordance with their respective terms (subject, as its terms. As of the date hereof neither the Borrower nor the corresponding tenant under each Lease is in default under the Leases. The Borrower has delivered to the enforcement Administrative Agent a true, correct and complete copy of remedieseach Lease. There are no other leases, subleases, assignments, modifications, extensions, renewals or other agreements of any kind whatsoever (written or oral) outstanding with respect to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)the Leases or the Realty.
Appears in 1 contract
Representations and Warranties of the Borrower. 3.1 The Borrower represents and warrants as followsto the Lenders that:
(a) Each of the The Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction State of Delaware, and is duly qualified to transact business in each state where the character of its organization, except, in properties or the case nature of any its business makes such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) qualification necessary. The Borrower has the requisite power power, authority, franchises and authority licenses (i) to own its property and assets the Collateral and to carry on and conduct its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect presently conducted and (ivii) in the case of the Borrower, has the corporate power to execute and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each all other agreement or instrument contemplated thereby Loan Documents to which it is or is to be a party and to borrow under this Agreement.
(b) perform each of its obligations hereunder and thereunder. The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered the Loan Documents has been duly authorized by it and all requisite corporate action;
(b) Neither the execution or delivery of this Agreement or the Loan Documents, nor the consummation of the transactions contemplated thereby are within hereby or thereby, nor the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, compliance with or performance of the terms and do not conditions of this Agreement or the Loan Documents (i) contravene is prevented or limited by, conflicts with, or will result in the charter breach or other constitutive documents violation of, or a default under the terms, conditions or provisions of (x) any mortgage, security agreement, lease, indenture, evidence of indebtedness, loan or financing agreement, partnership agreement, certificate of incorporation, by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which it is bound or (y) any provision of law, any order of any court or administrative agency or any rule or regulation applicable to the Borrower or its business; (ii) requires any consent or approval of any of them the stockholders of the Borrower; or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) will result in the creation or imposition of any Lien lien, upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary Borrower, other than liens in favor of the Borrower.Lenders which are contemplated by this Agreement and the Loan Documents. The Borrower is not in default under, or in violation of, any of its material obligations under any material contract, agreement or undertaking to which it is a party or by which it is bound;
(c) No authorization, approval or This Agreement and the other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that Loan Documents have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement isby, and any Notes when delivered hereunder will be, are the legal, valid and binding obligation of obligations of, the Borrower Borrower, enforceable against the Borrower it in accordance with their respective terms (subject, except as to the enforcement of remedies, to same may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and moratorium, fraudulent conveyance or similar laws affecting the enforcement of creditors’ ' rights generallyand the availability of equitable remedies (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(d) The representations, statements and warranties of the Borrower set forth in this Agreement in all material respects (i) are true, correct and complete, (ii) do not contain any untrue statement of a material fact, and (iii) do not omit to state a material fact necessary in order to make the statements contained herein or therein not misleading or incomplete. Borrower understands that all such statements, representations and warranties have been relied upon as an inducement by the Lenders to enter into the Loan Documents and the transactions contemplated thereby;
(e) Borrower has and will continue to have, except for the security interests granted hereby, good and marketable title to the Collateral owned by it or in its possession;
(f) The Collateral is free of all liens, security interests and encumbrances.;
(g) This Agreement has been given for value and is hereby declared to be irrevocable;
(h) The priority interest created in favor of the Lenders pursuant to this Agreement will constitute, upon proper filing of the UCCs and collateral assignment being given to the Lenders by the Borrower contemporaneously herein, a first priority perfected security interest in all Collateral, subject to no other security interest of any other person. Except for the financing statements in favor of the Lenders, no financing statement covering any of the Collateral or the proceeds thereof is on file in any public office or held by any Person.
(i) The chief and other places of business of the Borrower, the books and records relating to the Collateral, and the Collateral are located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, and the Borrower will not change any of the same without prior written notice to and consent of the Lenders, which consent shall not be unreasonably withheld;
(j) The Collateral is and will be used only in Borrower's business; and
(k) Borrower has made payments or deposits or otherwise provided for the payments, when due, of all taxes, assessments or contributions required by law which have been or may be levied or assessed against Borrower, whether with respect to any of the Collateral, to any wages or salaries paid by Borrower, or otherwise, and will deliver to the Lenders, on demand, certificates or other evidence satisfactory to the Lenders attesting thereto.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each Loan Party and each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) organization and has the all requisite organizational power and authority to own its property and assets and properties, to carry on conduct its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect being conducted and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby Loan Document to which it is or is to be a party party, except for any failures to be so organized, existing, qualified to do business or in good standing or to have such power and to borrow under this Agreementauthority as would not, individually or in the aggregate, have a Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes each Loan Document to which it is or is to be delivered by it a party and the consummation of the transactions contemplated hereby (including, without limitation, the Transaction, each Revolving Credit Borrowing and issuance or renewal of a Letter of Credit hereunder and the use of the proceeds thereof) and the transactions contemplated thereby (i) are within the Borrower’s corporate powerssuch Loan Party's organizational power, (ii) have been duly authorized by all necessary corporate action and, if required, stockholder organizational action, and (iii) do not contravene (iA) contravene the charter or other constitutive documents such Loan Party's certificate of organization or by-laws of the Borrower laws, (B) any law, rule, regulation, order, writ, injunction or decree, or (C) any contractual restriction under any material agreements binding on or affecting such Loan Party or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority such Loan Party or any provision other contractual restriction the contravention of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is would have a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the BorrowerMaterial Adverse Effect.
(c) No authorization, approval approval, consent, license or other action by, and no notice to or filing with, any Governmental Authority governmental authority, regulatory body or other Person is required for the due execution, delivery and performance by the Borrower each Loan Party of this Agreement each Loan Document to which it is or any Notes is to be delivered by ita party, or for the consummation of the transactions contemplated hereby (including, without limitation, the Transaction (other than the Order Entry), each Revolving Credit Borrowing and issuance or renewal of a Letter of Credit hereunder and the use of the proceeds thereof) and the transactions contemplated thereby, except for such (i) consents, authorizations, approvals, actions, filings and notices or filings that which have been obtained or made or obtained and are in full force and effect, (ii) the UCC filings referred to in Section 3.01, (iii) approvals that would be required under agreements that are not material agreements and (iv) as otherwise permitted by the Loan Documents.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, each Loan Party thereto and any Notes when delivered hereunder will be, the constitute legal, valid and binding obligation obligations of the Borrower such Loan Party enforceable against the Borrower such Loan Party in accordance with their respective terms (subjectterms, except as to the enforcement of remedies, to such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or similar laws law affecting creditors’ ' rights generally.
(e) The Financial Statements have been reported on by KPMG LLP and fairly present the consolidated financial position of the Borrower and its consolidated subsidiaries as at such date and the consolidated results of their operations and cash flows for the year then ended, all in accordance with GAAP. The unaudited consolidated balance sheet of the Borrower and its consolidated subsidiaries as at June 30, 2003 and the related unaudited consolidated statements of income and cash flows of the Borrower and its consolidated subsidiaries for the six months then ended, included in the Borrower's June 2003 10-Q, fairly present, subject to year-end audit adjustments, the consolidated financial position of the Borrower and its consolidated subsidiaries as at such date and the consolidated results of their operations and cash flows for the six months ended on such date, all in accordance with GAAP. Since December 31, 2002 through October 30, 2003 there has been no material adverse change (which shall not be deemed to refer to the filing of the Chapter 11 Cases or to the accounting charge to be taken by the Borrower directly in connection with the Settlement Payments) in the condition (financial or otherwise), operations or business of the Borrower and its Subsidiaries, taken as a whole except as disclosed in the June 2003 10-Q.
(f) Except as set forth in the Borrower's Form 10-K for the year ended December 31, 2002, the June 2003 10-Q, Schedule 4.01(f) to this Agreement and, from and after the occurrence of the Collateral Release Date, except for litigation, investigations and proceedings arising after the date hereof that are described in reasonable detail in a notice from the Borrower to the Agent, there is no litigation, investigation or proceeding pending or, to the Borrower's knowledge, threatened against or affecting the Borrower, any of its Subsidiaries or any of its or their respective rights or properties before any court or by or before any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (i) that could reasonably be expected to have a Material Adverse Effect or (ii) that in any manner draws into question or purports to affect (A) prior to the Collateral Release Date, the Transaction (other than objections to the Plan of Reorganization and appeals of the confirmation order entered by the Bankruptcy Court in connection therewith) or (B) any other transaction contemplated hereby or the legality, validity, binding effect or enforceability of any Loan Document.
(g) Schedule 4.01(g) hereto constitutes a complete and accurate list of all pending non-US lawsuits as of October 30, 2003 against the Borrower and its Subsidiaries (including, without limitation, claims arising through a Subsidiary not listed on Schedule II hereto) asserting exposure to asbestos, asbestos-related products, silica and/or silica-related products and, except as set forth in such Schedule 4.01(g) and other non-material asbestos or silica claims disclosed to the Co-Lead Arrangers in writing prior to October 30, 2003, the Borrower has not been notified of (A) any claims against the Borrower and its Subsidiaries asserting exposure to asbestos, asbestos-related products, silica and/or silica-related products which will not be resolved pursuant to the Order Entry or (B) any adoption or change of any statute, rule or regulation affecting such claims or future claims against the Borrower and its Subsidiaries asserting exposure to asbestos, asbestos-related products, silica and/or silica-related products, in each case, which could be reasonably expected to have a Material Adverse Effect.
(h) Schedule 4.01(h) hereto lists all of the Borrower's domestic Subsidiaries as of October 30, 2003.
(i) Neither any Loan Party nor any Subsidiary of a Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U). Following the application of the proceeds of each Advance and each Letter of Credit, (i) not more than 25% of the value of the assets of the Borrower that are subject to any arrangement with the Agent or any Bank (herein or otherwise) whereby the Borrower's right or ability to sell, pledge or otherwise dispose of assets is in any way restricted (or pursuant to which the exercise of any such right is or may be cause for accelerating the maturity of all or any portion of the Advances or any other amount payable hereunder or under any such other arrangement), will be margin stock (within the meaning of Regulation U); and (ii) not more than 25% of the value of the assets of the Borrower and its Subsidiaries that are subject to any arrangement with the Agent or any Bank (herein or otherwise) whereby the right or ability of the Borrower or any of its Subsidiaries to sell, pledge or otherwise dispose of assets is in any way restricted (or pursuant to which the exercise of any such right is or may be cause for accelerating the maturity of all or any portion of the Advances or any other amount payable hereunder or under any such other arrangement), will be any such margin stock. No proceeds of any Advance or any Letter of Credit will be used in any manner that is not permitted by Section 5.02.
(j) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(k) Neither any Loan Party nor any of its Subsidiaries is 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", as such terms are defined in the Public Utility Holding Company Act of 1935, as amended.
(l) No statement or information contained in this Agreement or any other document, certificate or statement furnished to the Agent or the Banks by or on behalf of the Borrower for use in connection with the transactions contemplated by this Agreement or the Notes (as modified or supplemented by other information furnished) contains as of the date such statement, information, document or certificate was so furnished any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made; provided, however, that, with respect to any such information, exhibit or report consisting of statements, estimates, pro forma financial information, forward-looking statements and projections regarding the future performance of the Borrower or any of its Subsidiaries ("Projections"), no representation or warranty is made other than that such Projections have been prepared in good faith based upon assumptions believed to be reasonable at the time.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreementincorporation.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes the Loan Documents to be delivered by which it is a party, and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not contravene (i) contravene the Borrower's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority contractual restriction binding on or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of affecting the Borrower.
(c) No authorization, 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 Agreement, the Notes or any Notes other Loan Document to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectwhich it is a party.
(d) This Agreement has been, and any each of the Notes and each of the other Loan Documents to be delivered by which it is a party when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any 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 obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectterms, as subject to the enforcement effect of remedies, to any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or similar laws law affecting creditors’ creditors rights generally.
(e) The Audited Statements of the Borrower and the Unaudited Statements of the Borrower, 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
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of the Significant Subsidiaries before any court, governmental agency or arbitrator that (i) could 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 this Agreement, any Note or any other 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 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 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 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) 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 (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) constitutes less than twenty-five percent (25%) of the value of those assets of the Borrower and its Subsidiaries which are subject to any limitation on sale or pledge, or any other restriction hereunder.
(n) Neither the Borrower nor any of its Subsidiaries is, or after the making of any Revolving Credit Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other transactions contemplated hereby, will be, an "investment company", or 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).
(o) 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 Public Utility Holding Company Act of 1935, as amended (the "1935 Act"), and such "holding company" and the Borrower are currently exempt from the provisions of the 1935 Act (except Section 9 thereof).
Appears in 1 contract
Sources: Credit Agreement (Detroit Edison Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) organization and has the all requisite organizational power and authority to own its property and assets and properties, to carry on conduct its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect being conducted and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby Loan Document to which it is or is to be a party party, except for any failures to be so organized, existing, qualified to do business or in good standing or to have such power and authority as could not, individually or in the aggregate, reasonably be expected to borrow under this Agreementhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it each Loan Document and the consummation of the transactions contemplated hereby (including each Revolving Credit Borrowing, Swingline Advance and issuance or renewal of a Letter of Credit hereunder and the use of the proceeds thereof) and the transactions contemplated thereby (i) are within the Borrower’s corporate powerspower, (ii) have been duly authorized by all necessary corporate action and, if required, stockholder action, and (iii) do not contravene (iA) contravene the charter or other constitutive documents Borrower’s certificate of incorporation or by-laws of laws, (B) any law, rule, regulation, order, writ, injunction or decree, or (C) any contractual restriction under any material agreements binding on or affecting the Borrower or any Subsidiary or any other contractual restriction, which, in the cases of the Borrowerforegoing clauses (iii)(B) and (iii)(C), (ii) violate any law or order the contravention of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is would have a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the BorrowerMaterial Adverse Effect.
(c) No authorization, approval approval, consent, license or other action by, and no notice to or filing with, any Governmental Authority governmental authority, regulatory body or other Person is required to be made or obtained by the Borrower or any Subsidiary thereof for the due execution, delivery and performance by the Borrower of this Agreement each Loan Document to which it is or any Notes is to be delivered by ita party, or for the consummation of the transactions contemplated hereby (including each Revolving Credit Borrowing, Swingline Advance and issuance or renewal of a Letter of Credit hereunder and the use of the proceeds thereof) and the transactions contemplated thereby, except for such (i) consents, authorizations, approvals, actions, filings and notices or filings that which have been obtained or made or obtained and are in full force and effect, (ii) approvals that would be required under agreements that are not material agreements and (iii) as otherwise permitted by the Loan Documents.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, Borrower and any Notes when delivered hereunder will be, the constitute legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectterms, except as to the enforcement of remedies, to such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or similar laws law affecting creditors’ rights generally.
(e) The Financial Statements have been reported on by KPMG LLP and fairly present in all material respects the consolidated financial position of the Borrower and its consolidated Subsidiaries as at December 31, 2021 and the consolidated results of their operations and cash flows for the year then ended, all in accordance with GAAP. Since December 31, 2021 through the date hereof there has been no material adverse change in the business, financial condition, operations, performance or properties of the Borrower and its Subsidiaries, taken as a whole, except as disclosed in the Borrower’s Form 10-Q for the quarter ended March 31, 2022 or any filing by the Borrower with the SEC on Form 8-K not less than five days prior to the date hereof.
(f) As of the date hereof, except as disclosed in the Borrower’s Form 10-K for the fiscal year ended December 31, 2021, Form 10-Q for the quarter ended March 31, 2022 or any filing by the Borrower with the SEC on Form 8-K not less than five (5) days prior to the date hereof, there is no litigation, investigation or proceeding pending or, to the Borrower’s knowledge, threatened against or affecting the Borrower, any of its Subsidiaries or any of its or their respective rights or properties before any court or by or before any arbitrator or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (i) that would reasonably be expected to have a Material Adverse Effect or (ii) that in any manner draws into question or purports to affect any transaction contemplated hereby or the legality, validity, binding effect or enforceability of the Borrower’s obligations or the rights and remedies of the Banks relating to this Agreement and the other Loan Documents.
(g) Neither the Borrower nor any Subsidiary is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U). Following the application of the proceeds of each Advance and each Letter of Credit, (i) not more than 25% of the value of the assets of the Borrower that are subject to any arrangement with the Agent or any Bank (herein or otherwise) whereby the Borrower’s right or ability to sell, pledge or otherwise dispose of assets is in any way restricted (or pursuant to which the exercise of any such right is or may be cause for accelerating the maturity of all or any portion of the Advances or any other amount payable hereunder or under any such other arrangement), will be margin stock (within the meaning of Regulation U); and (ii) not more than 25% of the value of the assets of the Borrower and its Subsidiaries that are subject to any arrangement with the Agent or any Bank (herein or otherwise) whereby the right or ability of the Borrower or any of its Subsidiaries to sell, pledge or otherwise dispose of assets is in any way restricted (or pursuant to which the exercise of any such right is or may be cause for accelerating the maturity of all or any portion of the Advances or any other amount payable hereunder or under any such other arrangement), will be any such margin stock. No proceeds of any Advance or any Letter of Credit will be used in any manner that is not permitted by Section 5.02.
(h) The Borrower is not required to register as an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) No statement or information contained in this Agreement or any other document, certificate or written statement furnished to the Agent or the Banks by or on behalf of the Borrower for use in connection with the transactions contemplated by the Loan Documents (as modified or supplemented by other information furnished) contains as of the date such statement, information, document or certificate was so furnished any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained herein or therein (taken as a whole) not misleading in light of the circumstances under which they were made; provided, however, that, with respect to any such information, exhibit or report consisting of statements, estimates, pro forma financial information, forward-looking statements and projections regarding the future performance of the Borrower or any of its Subsidiaries (“Projections”), no representation or warranty is made other than that such Projections have been prepared in good faith based upon assumptions believed by the Borrower or such Subsidiary to be reasonable at the time.
(j) Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower, any of their respective directors, officers, employees or agents engaged by them and conducting activities on their behalf, is (i) an individual or entity that is currently the subject of any Sanctions or (ii) included on OFAC’s List of Specially Designated Nationals and Blocked Persons or HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List. Neither the Borrower nor any of its Subsidiaries has established and maintains a physical presence, or is otherwise organized or resident, in a Designated Jurisdiction in violation of Sanctions other than as disclosed to the Joint Lead Arrangers prior to the date hereof.
(k) Other than as could not reasonably be expected to have a Material Adverse Effect, the Borrower and its Subsidiaries are in compliance, with (i) the Patriot Act, (ii) the Beneficial Ownership Regulation and (iii) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 C.F.R. Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto. The Borrower and its Subsidiaries and, to the knowledge of the Borrower, any of their respective directors, officers, employees or agents engaged by them and conducting activities on their behalf, are in compliance with applicable Sanctions in all material respects.
(l) Other than as could not reasonably be expected to have a Material Adverse Effect, the Borrower and its Subsidiaries and, to the knowledge of the Borrower, their respective directors, officers, employees and agents engaged by them and conducting activities on their behalf, are in compliance with applicable Anti-Corruption Laws.
(m) As of the Effective Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants to each of the other parties hereto as of the Closing Date and each Funding Date as follows:
(a) Each of the Borrower It is a business trust and its Subsidiaries (i) is duly organized, formed and validly existing and in good standing under the laws of the jurisdiction State of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) Delaware and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Operative Agreements to which it is a party and (assuming due authorization, execution and delivery of the Trust Agreement by the parties thereto) the trust power and any Notes authority to enter into and perform the obligations under each of the other agreement or instrument contemplated thereby Operative Agreements to which it is or is to will be a party and each other agreement, instrument and document to borrow under this Agreement.be executed and delivered by it on or before the Closing Date in connection with or as contemplated by each such Operative Agreement to which it is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of this Agreement parties thereto) has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law Legal Requirement relating to its trust powers, (iii) does or order will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) the Trust Agreement or Certificate of Trust, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict with, result in would materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon or with respect to Governmental Action by any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.Governmental Authority regulating its trust powers;
(c) No authorizationThe Trust Agreement and, approval or other action by, and no notice to or filing with, any Governmental Authority assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the parties hereto, each other Operative Agreement to which the Borrower is or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by it, and each Operative Agreement to which it is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower it in accordance with their respective the terms thereof subject, in each case as to enforceability, to bankruptcy, insolvency, reorganization and other similar laws affecting enforcement of creditor rights generally (subjectinsofar as any such law relates to the bankruptcy, insolvency, reorganization or similar event of the Borrower) and, as to the enforcement availability of remediesspecific performance or other injunctive relief, subject to the discretionary power of a court to deny such relief and to general equitable principles;
(d) There is no action or proceeding pending or, to applicable bankruptcyits knowledge, reorganizationthreatened to which it is or will be a party before any Governmental Authority that, insolvencyif adversely determined, moratorium would materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party;
(e) It has not assigned or transferred any of its right, title or interest in or under the Lease or its interest in any of the Properties, or any portion thereof, except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of the Loans and Holder Advances shall not be applied by it for any purpose other than the purchase or lease of the Property or Properties, as applicable, and the payment of Transaction Expenses and the fees, expenses and other disbursements referenced in SECTION 7;
(h) Neither it nor any Person authorized by it to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar laws affecting creditors’ rights generally).security relating to any Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither it nor any Person authorized by it to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the provisions of Section 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The principal place of business, chief executive office and office where the documents, accounts and records relating to the transactions contemplated by this Agreement
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of CMS Energy, Consumers and each of the Borrower and its Restricted Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction state of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power incorporation and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is duly qualified to do business in, and is in every jurisdiction good standing in, all other jurisdictions where the nature of its business or the nature of property owned or used by it makes such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreementnecessary.
(b) The execution, delivery and performance by the Borrower Loan Party of this Agreement and any Notes each Loan Document to which it is or will be delivered by it and the consummation of the transactions contemplated thereby a party (i) are within the Borrower’s corporate such Loan Party's powers, (ii) have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents organizational action or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, proceedings and (iii) conflict with, result in a breach do not and will not (A) require any consent or approval of or constitute the stockholders (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or applicable holder of equity) of such Loan Party (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, than such consents and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that approvals which have been made or obtained and are in full force and effect), (B) violate any provision of the charter or by-laws (or other comparable constitutive documents) of such Loan Party or of law, (C) violate any legal restriction binding on or affecting such Loan Party, (D) result in a breach of, or constitute a default under, any indenture or loan or credit agreement or any other agreement, lease or instrument to which such Loan Party is a party or by which it or its properties may be bound or affected, or (E) result in or require the creation of any Lien (other than pursuant to the Loan Documents and pursuant to the "Loan Documents" as defined in each of the Three Year Facility and the 364 Day Facility) upon or with respect to any of its respective properties.
(c) No Governmental Approval is required, other than filings necessary to create or perfect security interests in the Collateral or as may be required under applicable energy, antitrust or securities laws in connection with the exercise of remedies with respect to certain Collateral.
(d) This Agreement has beenEach Loan Document executed on the Closing Date is, and each other Loan Document to which any Notes to Loan Party will be delivered by it a party when executed and delivered hereunder will have been(i) where applicable, duly executed create valid and, upon filing of the financing statements delivered on the Closing Date and delivered by described in Section 6.01(d), perfected Liens in the Borrower. This Agreement isCollateral covered thereby securing the payment of all of the Loans purported to be secured thereby, which Liens shall be first perfected Liens, and any Notes when delivered hereunder will (ii) be, the legal, valid and binding obligation obligations of the Borrower such Loan Party enforceable against the Borrower such Loan Party in accordance with their respective terms terms; subject to the qualification, 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 the application of general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(i) The consolidated balance sheet of CMS Energy and its Consolidated Subsidiaries as at December 31, 2001, and the related consolidated statements of income, retained earnings and cash flows of CMS Energy and its Consolidated Subsidiaries for the fiscal year then ended, included in CMS Energy's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, and the unaudited consolidated balance sheet of CMS Energy and its Consolidated Subsidiaries as at March 31, 2002, and the related unaudited consolidated statements of income, retained earnings and cash flows for the three-month period then ended, in each case as such financial statements are proposed to be restated as disclosed in CMS Energy's Forms 8-K filed with the Securities and Exchange Commission on May 29, 2002 and June 11, 2002, copies of each of which have been furnished to each Lender, fairly present (subject, in the case of such balance sheet and statement of income for the three months ended March 31, 2002, to year-end adjustments) the financial condition of CMS Energy and its Consolidated Subsidiaries as at such dates and the results of operations of CMS Energy and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied; (ii) since March 31, 2002, except as disclosed in the CMS Energy's Quarterly Report on Form 10-Q for the period ended March 31, 2002 and in the Current Reports on Form 8-K filed by CMS Energy on May 29, 2002 and June 11, 2002, there has been no Material Adverse Change; and (iii) no Loan Party has any material liabilities or obligations except as reflected in the foregoing financial statements and in Schedule II, as evidenced by the Loan Documents and as may be incurred, in accordance with the terms of this Agreement, in the ordinary course of business (as presently conducted) following the Closing Date.
(f) Except (i) as disclosed in CMS Energy's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, CMS Energy's Quarterly Report on Form 10-Q for the period ended March 31, 2002, and the Current Report on Form 8-K filed by CMS Energy on May 29, 2002, and (ii) such other similar actions, suits and proceedings predicated on the occurrence of the same events giving rise to any actions, suits and proceedings described in the Reports filed with the Securities and Exchange Commission set forth in clause (i) hereof, there are no pending or threatened actions, suits or proceedings against or, to the enforcement knowledge of remediesCMS Energy, affecting CMS Energy or any of its Subsidiaries or the properties of CMS Energy or any of its Subsidiaries before any court, governmental agency or arbitrator, that would, if adversely determined, reasonably be expected to materially adversely affect the financial condition, properties, business or operations of CMS Energy and its Subsidiaries, considered as a whole, or affect the legality, validity or enforceability of this Agreement or any other Loan Document.
(g) All insurance required by Section 8.01(b) is in full force and effect.
(h) No Plan Termination Event has occurred nor is reasonably expected to occur with respect to any Plan of CMS Energy or any of its ERISA Affiliates which would result in a material liability to CMS Energy, except as disclosed and consented to by the Required Lenders in writing from time to time. Since the date of the most recent Schedule B (Actuarial Information) to the annual report of CMS Energy (Form 5500 Series), if any, there has been no material adverse change in the funding status of the Plans referred therein and no "prohibited transaction" has occurred with respect thereto which is reasonably expected to result in a material liability to CMS Energy. Neither CMS Energy nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan, except as disclosed and consented to by the Required Lenders in writing from time to time.
(i) No 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 (except for any such circumstance, if any, which is covered by insurance which coverage has been confirmed and not disputed by the relevant insurer) affecting the properties, business or operations of CMS Energy, Consumers or any Restricted Subsidiary has occurred that could reasonably be expected to have a material adverse effect on the business, assets, property, financial condition, results of operations or prospects of (A) CMS Energy and its Subsidiaries, considered as a whole, or (B) Consumers and its Subsidiaries, considered as a whole.
(j) CMS Energy and its Subsidiaries have filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or, to applicable bankruptcythe extent CMS Energy or any of its Subsidiaries is contesting in good faith an assertion of liability based on such returns, reorganizationhas provided adequate reserves for payment thereof in accordance with GAAP.
(k) No extraordinary judicial, insolvencyregulatory or other legal constraints exist which limit or restrict Consumers' ability to declare or pay cash dividends with respect to its capital stock, moratorium other than pursuant to the Consumers Credit Facility.
(l) CMS Energy owns not less than 80% of the outstanding shares of common stock of the Borrower.
(m) CMS Energy owns not less than 80% of the outstanding shares of common stock of Consumers.
(n) The Consolidated 2002-2006 Projections of Consumers, CMS Energy and similar laws affecting creditors’ rights generallythe Borrower (the "PROJECTIONS"), copies of which have been distributed to the Banks in the Confidential Information Memorandum dated June 2002 (the "CONFIDENTIAL INFORMATION MEMORANDUM"), are based upon assumptions that the Borrower believed were reasonable at the time the Projections were delivered, and all other financial information contained in the Confidential Information Memorandum or otherwise delivered by the Borrower to the Administrative Agent and the Banks on and after June 11, 2002 is true and correct in all material respects as at the dates and for the periods indicated therein.
(o) No Loan Party is engaged in the business of extending credit for the purpose of buying or carrying margin stock (within the meaning of Regulation U issued by the Board), and no proceeds of any Loan 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.
(p) No Loan Party is an investment company (within the meaning of the Investment Company Act of 1940, as amended).
(q) No proceeds of any Extension of Credit will be used to acquire any security in any transaction without the approval of the board of directors of the Person issuing such security if (i) the acquisition of such security would cause CMS Energy to own, directly or indirectly, 5.0% or more of any outstanding class of securities issued by such Person, or (ii) such security is being acquired in connection with a tender offer.
(r) Following application of the proceeds of each Extension of Credit, not more than 25 percent of the value of the assets of the Borrower and its Subsidiaries on a consolidated basis will be margin stock (within the meaning of Regulation U issued by the Board).
(s) Borrower, each Guarantor and Consumers are exempt from the registration requirements of the Public Utility Holding Company Act of 1935, as amended, 15 USC 79 et seq.
(t) The Borrower has not withheld any fact from the Administrative Agent or the Lenders in regard to the occurrence of any Material Adverse Change.
(u) After giving effect to the Loans to be made on the Closing Date or such other date as Loans requested hereunder are made, and the disbursement of the proceeds of such Loans pursuant to the Borrower's instructions, CMS Energy and its Subsidiaries, taken as a whole, are Solvent.
(v) Schedule II sets forth as of June 30, 2002 (i) all Project Finance Debt of the Consolidated Subsidiaries, and (ii) debt (as such term is construed in accordance with GAAP) of the Loan Parties, and, as of the Closing Date, there are no defaults in the payment of principal or interest on any such Debt and no payments thereunder have been deferred or extended beyond their stated maturity (except as disclosed on such Schedule).
Appears in 1 contract
Representations and Warranties of the Borrower. The To induce the Banks and the Agent to execute and deliver this Amendment (which representations and warranties shall survive the execution and delivery of this Amendment), the Borrower represents and warrants as followsto the Agent and the Banks that:
(a) Each of this Amendment and the Borrower New Notes (as defined below in Section 6(b) hereof) have been duly authorized, executed and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and this Amendment and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or New Notes constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectterms, subject to limitations as to the enforcement of remediesenforceability which might result from bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and or similar laws affecting or equitable principles relating to or limiting creditors’ ' rights generally;
(b) the Credit Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation of the Borrower enforceable against the
(c) the execution, delivery and performance by the Borrower of the Amendment and the New Notes (i) have been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) do not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which it is a party or by which any of its properties or assets are or may be bound, or (B) result in a breach of or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 4(c);
(d) as of the date hereof, no unwaived Default or Event of Default has occurred which is continuing; and
(e) all the representations and warranties contained in Section 4 of the Credit Agreement are true and correct in all material respects with the same force and effect as if made by the Borrower on and as of the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Norstan Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the Borrower State of Nevada and is duly qualified to do business and is in good standing as a foreign corporation under the laws of each state in which the ownership of its Subsidiaries (i) properties or the conduct of its business makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect, and each Material Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is incorporated or is to be a party and to borrow under this Agreementotherwise organized.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it each Loan Document, and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrower’s corporate powers, powers and have been duly authorized by all necessary corporate action and, if required, stockholder action, . Each Loan Document has been duly executed and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or delivered by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itLoan Document, or for the consummation of the transactions contemplated hereby and thereby, except for other than such authorizations, approvals, actions, notices or filings Governmental Approvals that have been made or duly obtained and are in full force and effect, which as of the date hereof are as follows: Order issued January 25, 2022 by the PUCN in Docket No. 21-10027.
(d) This Agreement has beenThe execution, delivery and performance by Borrower of the Loan Documents will not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower or any Notes 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 delivered by it when delivered hereunder will expected to have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, a Material Adverse Effect.
(e) Each Loan Document is the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as limited by bankruptcy and similar laws affecting the enforcement of creditors’ rights generally and by the application of general equitable principles.
(f) 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) Except as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024 or in any Current Report on Form 8-K or Quarterly Report on Form 10-Q filed subsequent thereto but prior to the SecondThird Amendment Effective Date, 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 sheet of the Borrower and its Consolidated Subsidiaries as at December 31, 20212024, and the related consolidated statements of income, cash flows and stockholders’ equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Administrative Agent and each Lender, present fairly in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such date, and the consolidated results of their operations and cash flows 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 (except as may be disclosed therein).
(i) Except as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024 or in any Current Report on Form 8-K or Quarterly Report on Form 10-Q filed subsequent thereto but prior to the SecondThird Amendment Effective Date, since December 31, 20212024, no event has occurred that could reasonably be expected to have a Material Adverse Effect.
(j) The Borrower 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 on any assessments made against it or any of its property; other than (i) with respect to taxes the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or the applicable Material Subsidiary, as the case may be, or (ii) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
(k) 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 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) Except as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 20232024 or in any Current Report on Form 8-K or Quarterly Report on Form 10-Q filed subsequent thereto but prior to the SecondThird Amendment Effective Date, (i) 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 and (ii) 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 and employees with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and, to the knowledge of the Borrower, their respective officers, directors and employees and their respective agents that will act in any capacity in connection with or benefit from the credit facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of the Borrower or any Subsidiary is a Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds or other transaction contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions.
(r) At all times prior to the 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, enforceable against the Borrower in accordance with their respective terms, 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.
(subjectt) At all times prior to the Collateral Release, the General and Refunding Mortgage Bonds secure the Obligations of the Borrower hereunder, have been duly and validly issued and are entitled to the security and benefits of the General and Refunding Mortgage Indenture. At all times prior to the Collateral Release, the General and Refunding Mortgage Bonds are secured equally and ratably with, and only with, all other Securities (as defined in the General and Refunding Mortgage Indenture) issued and outstanding under the General and Refunding Mortgage Indenture.
(u) The Borrower is not a “covered foreign person” as that term is used in the Outbound Investment Rules. The Borrower does not currently engage, or have any present intention to engage in the future, directly or indirectly, in (i) a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, (ii) any activity or transaction that would constitute a “covered activity” or a “covered transaction”, as each such term is defined in the Outbound Investment Rules, if the Borrower was a U.S. Person or (iii) any other activity that would cause the Administrative Agent or the Lenders to be in violation of the enforcement of remedies, Outbound Investment Rules or cause Administrative Agent or the Lender to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)be legally prohibited by the Outbound Investment Rules from performing under this Agreement.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants to each of the other parties hereto that as follows:of the Closing Date and the date of each Advance (except to the extent any such representation or warranty relates to an earlier date):
(a) Each of the Borrower It is a corporation duly organized and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationNorth Carolina, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every New Jersey and in each jurisdiction where such qualification is required, except where necessary to permit the failure so Borrower to qualify would not result in a Material Adverse Effect own and (iv) in lease the case of the Borrower, has the corporate power and authority to execute, deliver Property and perform its obligations under this Agreement the Operative Agreements and any Notes has the power and authority to enter into and perform its obligations under each other agreement or instrument contemplated thereby of the Operative Agreements to which it is or is to will be a party and each other agreement, instrument and document to borrow under this Agreement.be executed and delivered by it on or before such Closing Date in connection with or as contemplated by each such Operative Agreement to which the Borrower is or will be a party, and is a multi-purpose, Wholly-Owned Entity of First Union Corporation;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party has been duly authorized by all necessary action on its part and neither the Borrower of this Agreement execution and any Notes to be delivered by it and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any of its indebtedness or obligations or any Subsidiary of the Borrowerother consent or approval that has not previously been obtained, (ii) violate does or will contravene any law Legal Requirement, (iii) does or order will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict with, result in could reasonably be expected to materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a breach party or would question the validity or enforceability of any of the Operative Agreements to which it is or constitute (alone or with notice or lapse of time or both) will become a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon or with respect to Governmental Action by any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.Governmental Authority;
(c) No authorization, approval or other action by, and no notice Each Operative Agreement to or filing with, any Governmental Authority is required for the due execution, delivery and performance by which the Borrower of this Agreement is or any Notes to will be delivered by ita party have been, or for the consummation on or before such Closing Date or date of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder Advance will have beenbe, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder each Operative Agreement to which the Borrower is a party constitutes, or upon execution and delivery will beconstitute, the a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party;
(e) The Borrower has not assigned or transferred any of its right, title or interest in or under the Lease, the Agency Agreement or its interest in the Property or any portion thereof, except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of the Advances shall not be applied by the Borrower for any purpose other than the purchase and/or lease of the Property, the acquisition, installation and testing of the Equipment, the repair, replacement, renovation and/or construction of Improvements and the payment of interest, Transaction Expenses and the fees, expenses and other disbursements referenced in the Operative Agreements, in each case which accrue prior to the Rent Commencement Date with respect to the Property;
(h) Neither the Borrower nor any Person authorized by the Borrower to act on its behalf has offered or sold any interest in the Borrower's Interest or the Notes, or in any similar security relating to the Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent and eighty-five (85) other institutions, and neither the Borrower nor any Person authorized by the Borrower to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Borrower's Interest or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The Borrower's principal place of business, chief executive office and office where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at One First Union Center, 301 South College Street, Charlotte, Mecklenburg County, Nort▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
(▇) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ does not have as one (1) of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U), and no part of the proceeds of the Loans will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulations T, U, or X;
(k) The Borrower is not an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act;
(l) The Property is free and clear of all Lessor Liens attributable to the Lessor;
(m) [Reserved].
(n) The Borrower's true legal name as registered in the jurisdiction of its organization is First Union Development Corporation and its Federal Employer Identification Number is 56-1610288. The Borrower does not use, or transact any busin▇▇▇ ▇▇▇▇▇, any trade name other than its legal name; and
(o) The Borrower has filed all tax returns and all other material reports that are required under applicable bankruptcyLaw to be filed by them and has paid all taxes or other charges of any Governmental Authority due pursuant to such returns or other reports, reorganization, insolvency, moratorium except for any taxes or other charges that are being diligently contested in good faith by appropriate proceedings and similar laws affecting creditors’ rights generally)for which adequate reserves have been set aside on the books and records of the Borrower.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
Appears in 1 contract
Sources: 364 Day Credit Agreement (United Parcel Service Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Lender as follows:
(a) Each of the Borrower and its Subsidiaries The Borrower: (i) is a corporation duly organized, validly existing and in good standing under the laws of the State, Commonwealth or other jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) is duly qualified and in good standing as a foreign business entity in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify, and (iii) has the all requisite power and authority (including, without limitation, all governmental licenses, agreements and other approvals) to own and lease and operate its property and assets properties and to carry on its business as now conducted and as proposed to be conducted, except, . The Borrower’s principal place of business is located in the case State of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementCalifornia.
(b) The execution, delivery and performance by the Borrower of the Note, this Agreement and any Notes the other Loan Documents to be delivered by which it and the consummation of the transactions contemplated thereby is a party are within the Borrower’s corporate powers, have been duly authorized authorized, by all necessary corporate action and, if required, stockholder action, and do not (i) do not contravene the Borrower’s charter or bylaws, operating agreement or partnership agreement, as the case may be, (ii) do not contravene any law or any contractual restriction binding on or affecting the Borrower, (iii) will not result in the breach of, or constitute a default or require any payment to be made under, any loan agreement, credit agreement, indenture, mortgage, deed of trust, bond, note, lease or other constitutive documents instrument or by-laws of agreement binding on or otherwise affecting the Borrower or any Subsidiary of the Borrowerits properties, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) except for the Liens created under the Loan Documents, will not result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower or any Subsidiary properties of the Borrower.
(c) No authorization, 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 (i) the due execution, delivery and performance by the Borrower of this Agreement or any Notes the Loan Documents to be delivered by itwhich it is a party, or for (ii) the consummation granting by the Borrower of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectLiens granted by it created pursuant to the Collateral Documents.
(d) This The Note, this Agreement has been, and any Notes the other Loan Documents to be delivered by it when delivered hereunder will which the Borrower is a party have been, been duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, are the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with their respective terms terms.
(subjecte) There is no pending or threatened action, unsatisfied judgment or other proceeding affecting the Borrower before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect, or (ii) purports to affect the legality, validity or enforceability of the Note, this Agreement or any other Loan Document to which the Borrower is a party, or the consummation of the transactions contemplated hereby or thereby.
(f) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (as defined in Regulation U), and no proceeds of any Advance will be used (i) to purchase or carry any margin stock (as defined in Regulation U) or to extend credit to others for the purpose of purchasing or carrying any margin stock, (ii) to repay any loan that was used to purchase or carry any margin stock, or (iii) to repay a loan made by an Affiliate of the Lender.
(g) “Isis Pharmaceuticals, Inc.” is the proper legal name of the Borrower, and the Borrower is a corporation; and as of the date hereof, it has only those Subsidiaries and Major Affiliates listed on Schedule 4.01(g) hereof.
(h) Schedule 4.01(h) hereof sets forth Borrower’s stockholders who beneficially own greater than 5% of Borrower’s voting stock as disclosed pursuant to the Securities Exchange Act of 1934, and the ownership interest in Borrower’s Subsidiaries.
(i) Schedule 4.01(i) hereof sets forth all of the Liens existing as of the date hereof filed against the Borrower, as debtor, and no such Liens are “adverse claims,” as such term is defined in Section 8-102(a) of the Code.
(j) The Borrower, each other Loan Party and/or Subsidiary of the Borrower or any other Loan Party (and to Borrower’s knowledge, each Major Affiliate), in each case to the enforcement extent required, (i) are in full compliance with and have policies, procedures, and internal controls in place that are reasonably designed to comply with applicable anti-corruption and anti-money laundering laws, rules and regulations, including, without limitation, the applicable provisions of remediesthe USA Patriot ▇▇▇ ▇▇▇▇, 107 Public Law 56 (October 26, 2001) (the “Patriot Act”), (ii) have implemented a Customer Identification Program (“CIP”) and perform CIP due diligence in accordance with the Patriot Act, (iii) have policies and procedures reasonably designed to comply with Sections 312 and 319 of the Patriot Act, including the identification of beneficial ownership where required under applicable law, and (iv) have policies and procedures in place reasonably designed to prohibit accounts for foreign shell banks in compliance with Sections 313 and 319 of the Patriot Act.
(k) Neither the Borrower, any other Loan Party, and/or Subsidiary of the Borrower or any Loan Party (and to Borrower’s knowledge, no Major Affiliate), nor any Person who, to the Borrower’s knowledge, has or will have an interest in the transaction contemplated by this Agreement or will participate, in any manner whatsoever, in receiving or utilizing the proceeds of any Advance, whether directly or indirectly, is or has been a Politically Exposed Person or an Immediate Family Member or Close Associate of a senior political figure.
(l) Neither the Borrower, any other Loan Party, and/or Subsidiary of the Borrower or any Loan Party (and to Borrower’s knowledge, no Major Affiliate), nor any director, officer, or employee thereof, nor, to the Borrower’s knowledge, any, agent or representative thereof, is a Person that, or is owned or controlled by a Person that, (i) is the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union or Her Majesty’s Treasury (collectively, “Economic Sanctions”), (ii) is located, organized or resident in a country or territory that would be impermissible under any Economic Sanctions (including, without limitation, the countries and territories of Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria) or (iii) has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any Person while knowing that all or some portion of the money or value will be offered, given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any improper advantage
(m) The financial statements of the Borrower as at the end of the most recently ended fiscal year of the Borrower containing a balance sheet of the Borrower and the related statements of income and cash flow of the Borrower for the fiscal year then ended, duly certified by an Authorized Person of the Borrower, copies of which have been furnished to the Lender, fairly present the financial condition of the Borrower as at such date and the results of the operations of the Borrower for the period ended on such date, all in accordance with GAAP. Since the end of the most recently ended fiscal year there has been no Material Adverse Change with respect to the Borrower.
(n) All tax returns required to be filed by the Borrower in any jurisdiction have been filed, and all taxes, assessments, fees and other governmental charges upon the Borrower, or upon any of its property, income or franchises, which are shown to be due and payable on such returns have been paid. The Borrower is not aware of any proposed additional tax assessment or tax to be assessed against or applicable bankruptcyto the Borrower.
(o) The Borrower is solvent, reorganizationis able to pay its debts as they become due and now owns property having a value both at fair valuation and a present fair salable value greater than the amount required to pay such debts as they mature, insolvencyand will not be rendered insolvent, moratorium or be left with insufficient capital, or be unable to pay its debts as they mature, by the execution, delivery and similar laws affecting creditors’ rights generally)performance of this Agreement or any other Loan Document to which the Borrower is a party or by the transactions contemplated hereunder or thereunder.
(p) The Borrower is not in default on any obligation for borrowed money, any purchase money obligation or other material lease, commitment, contract, instrument or other obligation, except as disclosed to Lender in writing.
(q) There is no event which constitutes a Default.
Appears in 1 contract
Sources: Line of Credit Agreement (Isis Pharmaceuticals Inc)
Representations and Warranties of the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for the undertakings on the part of the Issuer herein contained:
(ai) Each The Borrower is a corporation duly incorporated under the laws of the Borrower State of Texas and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction State of Texas, has power to enter into this Agreement and to perform and observe the agreements and covenants on its organizationpart contained herein, except, in and by proper corporate action has duly authorized the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effectexecution and delivery hereof, (ii) has the requisite power and authority Borrower is duly qualified to own its hold property and assets and to carry on its transact business as now conducted, except, a foreign corporation and is in good standing under the case laws of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse EffectState of Arizona, (iii) is qualified all of the proceeds of the Bonds will be used to do business in every jurisdiction where such qualification is requiredredeem and refund the Prior Bonds, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) prior to the issuance of the Bonds, the Federal Energy Regulatory Commission will have approved all matters relating to the Borrower's participation in the case transactions contemplated by this Agreement which require said approval, and no other consent, approval, authorization or other order of any regulatory body or administrative agency or other governmental body is legally required for the Borrower's participation therein except such as have been or will have been obtained prior to the issuance of the BorrowerBonds or such, has if any, as may be required under state securities or Blue Sky laws, and (v) the corporate power execution and authority to execute, deliver and perform its obligations under delivery of this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement do not, and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within hereby and fulfillment of the Borrower’s corporate powersterms hereof will not, have been duly authorized by all necessary corporate action andresult in a breach of any of the terms or provisions of, if requiredor constitute a default under, stockholder actionany indenture, and do not (i) contravene the charter mortgage, deed of trust or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower is a party, or the Restated Articles of Incorporation or Bylaws of the Borrower, or any Subsidiary of order, rule or regulation applicable to the Borrower is a party of any court or by which of any of them Federal or any of their property is state regulatory body or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement administrative agency or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by governmental body having jurisdiction over the Borrower or over any Subsidiary of its properties, or any statute of any jurisdiction applicable to the Borrower other than breaches or defaults that individually or in the aggregate are not expected to have a material adverse effect on the Borrower.
(b) The Facilities meet applicable Federal, state and local requirements for the control of pollution now in effect and are used for the reduction, abatement and prevention of pollution.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for The Borrower does not presently expect that the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation description of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are Facilities contained in full force and effectExhibit A hereto will be revised.
(d) This Agreement To the extent necessary to preserve the security for the Bonds, the validity of the Bonds under the Act and the Tax-Exempt status of interest on the Bonds, all material certificates, approvals, permits and authorizations of agencies of applicable local governmental entities, the State and the federal government have been obtained with respect to the construction of the Project and, pursuant to such certificates, approvals, permits and authorizations, the Project has been, been constructed and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by is in operation.
(e) To the best knowledge of the Borrower. This Agreement is, and any Notes when delivered hereunder will beno member, the legal, valid and binding obligation officer or other official of the Borrower enforceable against Issuer has any interest whatsoever in the Borrower or in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Administrative Agent and each Lender as follows:
(a) Each Loan Party and each of the Borrower and its Subsidiaries (i) is a company duly organized, validly existing and and, if applicable, in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) organization and has the all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own own, lease and operate its property and assets properties and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect conducted and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is as proposed to be a party and to borrow under this Agreementconducted.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes each other Loan Document to which it is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrowersuch Loan Party’s corporate organizational powers, have been duly authorized by all necessary corporate action and, if required, stockholder organizational action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowersuch Loan Party’s Constituent Documents, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary law, rule, regulation (including, without limitation, Regulation X of the Borrower is a party Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of any contractual restriction binding on or constitute (alone affecting such Loan Party, any of its Subsidiaries or with notice or lapse any of time or both) a default under any such indenturetheir properties, agreement or other instrument or (iv) except for the Security Interests, result in the creation or imposition of any Lien upon or with respect to on any property or assets now owned or hereafter acquired by the Borrower of such Loan Party or any Subsidiary of its Subsidiaries. None of the Borrowerexecution, delivery, or performance of this Agreement or the other Loan Documents, or any activities, transactions, services, or any collateral or security interest contemplated by, arising out of, or relating to this Agreement, would result in a violation of Sanctions by any Person, including, without limitation, any Secured Party or any other party to this Agreement or their respective Affiliates.
(c) No authorization, 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 any Loan Party of any Loan Document to which it is or is to be a party or (ii) the Borrower of this Agreement exercise by any Agent or any Notes to be delivered by it, or for the consummation Lender of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectits rights under any Loan Document.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder has been or will have been, duly executed and delivered by the Borrowereach Loan Party party thereto. This Agreement is, and any Notes each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party party thereto, enforceable against the Borrower such Loan Party in accordance with their respective terms terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(i) The Consolidated balance sheet of each of Aleph Group Inc. and its Subsidiaries and the Borrower and its Subsidiaries as at December 31, 2020, and the related Consolidated statements of income and cash flows of each of Aleph Group Inc. and its Subsidiaries and the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by opinions of PricewaterhouseCoopers, independent public accountants, and the Consolidated balance sheet of Aleph Group Inc. and its Subsidiaries and the Consolidated balance sheet of the Borrower and its Subsidiaries, in each case, as at September 30, 2021, and the related Consolidated statements of income and cash flows of each of Aleph Group Inc. and its Subsidiaries and the Borrower and its Subsidiaries for the nine months then ended, copies of which have been furnished to the Administrative Agent, fairly present, subject, in the case of said balance sheets as at September 30, 2021, and said statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of each of Aleph Group Inc. and its Subsidiaries and the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of each of Aleph Group Inc. and its Subsidiaries and the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with Applicable Accounting Rules consistently applied. The Borrower has no liabilities, obligations or commitments of a type required to be reflected on a balance sheet prepared in accordance with Applicable Accounting Rules except: (i) those which are adequately reflected or reserved against in the Consolidated balance sheet as at December 31, 2020 and (ii) those which have been incurred in the ordinary course of business since December 31, 2020 and which are not material in amount.
(ii) Since December 31, 2020, there has been no Material Adverse Change.
(f) There is no pending or, to the best of the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any Loan Party or any of its Subsidiaries before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby.
(g) 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 U.S. Federal Reserve System), and no proceeds of any Advance will be used for any purpose which violates or is inconsistent with the provisions of Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or to refinance or refund Debt originally incurred for such purpose.
(h) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material Tax returns (national, departmental, local, municipal and foreign) required to be filed and has paid or caused to be paid all Taxes due with respect to the years covered by such returns except for Taxes that are being contested in good faith by appropriate proceedings, for which the Borrower has made adequate reserves as required under Applicable Accounting Rules.
(i) Each Loan Party and each of its Subsidiaries is in compliance with all Applicable Laws and requirements of all Governmental Authorities (including, without limitation, all governmental licenses, certificates, permits, franchises and other governmental authorizations and approvals necessary to the ownership of its properties or to the conduct of its business, Environmental Laws, and laws with respect to social security and pension fund obligations), in each case except to the extent that failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
(i) Each Loan Party and each of its Subsidiaries has good and sufficient legal title to all its assets and properties that are material to its respective businesses, except for minor defects in title that do not interfere with its ability to conduct its respective businesses as currently conducted or to utilize such properties for their intended purposes, and, to the best of its knowledge, none of such assets or properties is subject to any Liens, except as permitted by Section 5.02(a).
(ii) The properties of each Loan Party and each of its Subsidiaries are insured with financially sound and reputable insurance companies (not being Affiliates thereof), in such amounts, with such deductibles and covering such risks as are customarily maintained by Persons engaged in a similar business, owning similar properties and operating in similar localities where each Loan Party and each of its Subsidiaries maintain their principal places of operations.
(k) Each Loan Party and each of its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights that are reasonably necessary for the operation of its respective businesses, without conflict in any material respects with the rights of any other Person. No slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by any of the Loan Parties or any of their respective Subsidiaries infringes upon any rights held by any other Person. No claim or litigation regarding any of the foregoing is pending or, threatened.
(l) No income, stamp or other Taxes (other than Taxes on, or measured by, net income or net profits) or levies, imposts, deductions, charges, compulsory loans or withholdings whatsoever are or will be, under Applicable Law, imposed, assessed, levied or collected by any governmental authority or any political subdivision or taxing authority thereof or therein either (i) on or by virtue of the execution or delivery of any Loan Document or (ii) on any payment to be made by any Loan Party pursuant to any Loan Document.
(m) Each Loan Document is in proper legal form under the laws of the jurisdiction of organization or incorporation of each Loan Party for the enforcement thereof against each Loan Party party thereto; provided that in the event of remediesenforcement in the courts of the State of New York, enforcement would be subject to applicable bankruptcy, reorganization, insolvency, moratorium insolvency and similar laws affecting creditors’ rights generallygenerally and to general principles of equity. To ensure the legality, validity, enforceability or admissibility in evidence of any Loan Document in each jurisdiction of incorporation or organization of each Loan Party, it is not necessary that this Agreement or any other Loan Document or any other document be filed or recorded with any court or other authority in such jurisdiction or that any stamp or similar tax be paid on or in respect of this Agreement or any other Loan Document. The submission to jurisdiction, appointment of the Process Agent, consents and waivers by the Borrower in Section 8.11 of this Agreement and by the other Loan Parties in the Guaranty are valid and irrevocable. It is not necessary in order for each Agent and each Lender to enforce any rights or remedies under the Loan Documents or solely by reason of the execution, delivery and performance by the Loan Parties of the Loan Documents that any Agent or any Lender be licensed or qualified with any Governmental Authority in any jurisdiction of incorporation or organization of any Loan Party, or be entitled to carry on business in any of the foregoing.
(n) No Loan Party is subject to regulation under any other law, treaty, rule or regulation or determination of an arbitrator or court or other Governmental Authority that limits its ability to incur any indebtedness under this Agreement.
(o) Each Loan Party is subject to civil and commercial law with respect to its obligations under the Loan Documents, and the execution, delivery and performance by each Loan Party of the Loan Documents to which it is party constitute private and commercial acts (jure gestionis acts) rather than public or governmental acts (jure imperii acts). No Loan Party or any of its Subsidiaries nor any of their respective properties has any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the United States or any other relevant jurisdiction in respect of its obligations under the Loan Documents.
(p) Each Loan Party’s payment obligations under this Agreement and the Guaranty rank and will rank at least pari passu in priority of payment and in all other respects with all other unsecured and unsubordinated Debt of such Loan Party.
(q) The obligations of the Loan Parties under the Loan Documents are not subject to any defense, set-off or counterclaim by any Loan Party or any circumstance whatsoever which might constitute a legal or equitable discharge from its obligations thereunder
(r) No Loan Party is required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended.
(s) No information, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation of the Loan Documents or pursuant to the terms of any Loan Document contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading. As of the Effective Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all material respects.
(t) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(u) Each Loan Party and each of its respective Subsidiaries is conducting its business in compliance with Anti-Corruption Laws. Each Loan Party and each of its respective Subsidiaries, directors, officers and employees and, to the knowledge of each Loan Party after due inquiry, its respective Affiliates, agents and other Persons acting for the benefit of any Loan Party, are in compliance with all Anti-Corruption Laws and are not under investigation for or being charged with any violation of Anti-Corruption Laws, in each case, except as disclosed in writing to the Administrative Agent and each Lender by such Loan Party in writing. Each Loan Party and each of its respective Subsidiaries, and their respective directors, officers and employees and, to the knowledge of each Loan Party after due inquiry, its respective Affiliates and agents are in compliance with all applicable Sanctions. Each Loan Party has implemented and maintains in effect policies and procedures to ensure compliance by each Loan Party and its Subsidiaries, and its and their respective directors, officers, employees, Affiliates and agents with Anti-Corruption Laws, and Anti-Money Laundering Laws and Sanctions.
(v) None of the Loan Parties or any of their parents or Subsidiaries or any of their respective directors, officers, or employees or, to the knowledge of any Loan Party after due inquiry, its agents or Affiliates or those of its Subsidiaries is a Sanctioned Person, or located, organized or resident in a Sanctioned Jurisdiction.
(w) The operations of each Loan Party and each of its respective Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, as amended, the applicable money laundering statutes of all jurisdictions where each Loan Party or any of its parents or Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental or regulatory agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or Governmental Authority or body or any arbitrator involving any Loan Party or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of any Loan Party after due inquiry, threatened.
(x) Under current laws and regulations of the jurisdiction of incorporation or organization of each Guarantor and each political subdivision thereof, all interest, principal, premium, if any, and other payments due or to be made on the Advances or otherwise pursuant to the Loan Documents may be freely transferred out of such jurisdiction and may be paid in, or freely converted into, U.S. Dollars.
(y) To its knowledge, no payments or other consideration provided to any Lender in satisfaction of or on account of any Loan Party’s obligations under this Agreement or any other Loan Document were derived from criminal or other illegal activity.
(z) No Default or Event of Default has occurred and is continuing.
(aa) No Subsidiary of the Borrower is required or permitted, pursuant to the terms and provisions of its respective Constituent Documents, any other agreement which such Subsidiary is a party or otherwise
Appears in 1 contract
Representations and Warranties of the Borrower. The To induce the ---------------------------------------------- Agent, the Lenders and the Swingline Lender to enter into this Amendment, the Borrower represents and warrants to each of them as follows:follows as of the date hereof (and assuming the effectiveness of this Amendment):
(a) Each No Default or Event of Default has occurred and is continuing;
(b) The representations and warranties made or deemed made by the Borrower and its Subsidiaries each Restricted Subsidiary in the Loan Documents to which it is a party, are true and correct with the same force and effect as if made on and as of the date hereof except to the extent that such representations and warranties expressly relate solely to an earlier date (iin which case such representations and warranties were true and accurate on and as of such earlier date) is duly organized, validly existing and except for changes in good standing factual circumstances specifically and expressly permitted under the laws of Credit Agreement;
(c) The Borrower and the jurisdiction of its organizationRestricted Subsidiaries have the right and power, exceptand each has taken all necessary action to authorize it, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement Amendment, the Guarantee, the Collateral Agency Agreement, the Security Agreement, the Pledge Agreement, the Mortgages (as each such term is defined in the Omnibus Agreement) and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation all of the transactions contemplated thereby are within the Borrower’s corporate powersother documents, have been duly authorized instruments and agreements being executed by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Restricted Subsidiary in connection with any of the foregoing (collectively, the "Amendment Documents") to the extent such Person is a party thereto, and, with respect to the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or to perform the Credit Agreement as amended by this Amendment, in each case in accordance with their respective terms. This Amendment and the other material agreement or instrument Amendment Documents to which the Borrower or any Restricted Subsidiary is a party have been duly executed and delivered by the duly authorized officers of the Borrower and its Restricted Subsidiaries, as the case may be, and each of this Amendment, such other Amendment Documents and the Credit Agreement as amended by this Amendment is a legal, valid and binding obligation of the Borrower and each Restricted Subsidiary a party thereto enforceable against such Person in accordance with its respective terms except as may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity; and
(d) The execution and delivery of this Amendment, such other Amendment Documents, and the performance of each of this Amendment, such other Amendment Documents and the Credit Agreement as amended by which this Amendment, in accordance with its respective terms, do not and will not, by the passage of time, the giving of notice, or otherwise: (i) require any of them Governmental Approval or violate any Applicable Law relating to the Borrower or any of their property is or may be bound or affected, Subsidiary; (iiiii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under the certificate of incorporation or the bylaws of the Borrower or any such Restricted Subsidiary, or any indenture, agreement or other instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or any of its respective properties may be bound; or (iviii) result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorizationexcept for Liens granted pursuant to, approval or other action contemplated by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectCollateral Agency Agreement.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, indicated in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case recital of the Borrower, has the corporate power and authority parties to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to which it is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the each such Loan Party's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law (including, without limitation, the Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of order, writ, judgment, injunction, decree, determination or award, binding on or affecting any indenture or other material agreement or instrument to which the Borrower Loan Party or any Subsidiary of the Borrower is a party or by which any of them its Subsidiaries or any of their property is or may be bound or affectedproperties, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of their Subsidiaries or any of their properties or (iv) except for the Liens created under the Collateral Documents, as amended hereby, or any amendments or supplements thereto contemplated hereby, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement Amendment, any of the Collateral Documents or any Notes amendments or supplements thereto contemplated hereby to which each such Loan Party is or is to be delivered by ita party, or for the consummation any of the transactions contemplated hereby and therebyLoan Documents, except for such authorizationsas amended hereby, approvals, actions, notices to which it is or filings that have been made or obtained and are in full force and effectis to be a party.
(d) This Agreement has been, Amendment and any Notes each of the Collateral Documents and amendments and supplements thereto contemplated hereby to be delivered by it when delivered hereunder will which each Loan Party is a party have been, been duly executed and delivered by the Borrowereach such Loan Party. This Agreement isAmendment and each of the other Loan Documents, as amended hereby, to which each Loan Party is a party are, and any Notes each of the other Collateral Documents and amendments and supplements thereto contemplated hereby to which each such Loan Party is or is to be a party, when delivered hereunder hereunder, will be, the legal, valid and binding obligation obligations of the Borrower each such Loan Party, enforceable against the Borrower each such Loan Party in accordance with their respective terms terms.
(subjecte) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of their Subsidiaries (including, without limitation, any Environmental Action) pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment, the Collateral Documents, any amendments or supplements thereto contemplated hereby or any of the other Loan Documents, as to amended hereby, or the enforcement consummation of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)any of the transactions contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (Mediq Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have Second Amendment has been duly authorized by all necessary corporate action and, if required, stockholder action, and do does not and will not (ia) contravene the charter require any consent or other constitutive documents 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 Subsidiary; (d) result in a breach of the Borroweror constitute a default or require any consent under any indenture, (ii) violate any law mortgage or order of any Governmental Authority loan or credit agreement or any provision of any indenture or other material agreement agreement, lease or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them it or any of their property is or its Properties may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument bound; or (ive) result in in, or require, the creation or imposition of any Lien upon or with respect to any property or assets of the Properties now owned or hereafter acquired by the Borrower or any Subsidiary Borrower.
(b) The representations and warranties contained in Article 4 of the BorrowerCredit Agreement, as amended by this Second Amendment, are correct in all material respects on and as of the date hereof as though made on and as of the date hereof.
(c) No authorization, approval Event of Default or other action by, Default has occurred and no notice to is continuing or filing with, any Governmental Authority is required for would result from the due execution, delivery and performance by the Borrower signing of this Agreement Second Amendment or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effecthereby.
(d) This Agreement There has beenbeen no material adverse change in the financial condition, and any Notes to be delivered by it when delivered hereunder will have beenoperations, duly executed and delivered by the Borrower. This Agreement isProperties, and any Notes when delivered hereunder will be, the legal, valid and binding obligation business or business prospects of the Borrower enforceable against and its Subsidiaries, if any, since the date of the last financial statements furnished to the Bank.
(e) No actions, suits or proceedings or investigations are pending or, as far as the Borrower in accordance with their respective terms (subjectcan reasonably foresee, as threatened against or affecting the Borrower or any Subsidiary, or any Property of any of them before any court, governmental agency or arbitrator, which if determined adversely to the enforcement Borrower or any Subsidiary would in any one case or in the aggregate have a Materially Adverse Effect.
(f) No information, exhibit or report furnished in writing by or on behalf of remediesthe Borrower or any officer or director of the Borrower to the Bank in connection with the negotiation of, or pursuant to applicable bankruptcythe terms of this Second Amendment, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)contained when made any material misstatement of fact or omitted to state a material fact necessary to make the statements contained therein not misleading.
Appears in 1 contract
Sources: Credit Agreement (Core Inc)
Representations and Warranties of the Borrower. The In order to induce the Lenders and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto the Lenders and Administrative Agent that the following statements are true, correct and complete:
(ai) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to executemake, deliver and perform its obligations under this Amendment No. 1 and the Credit Agreement as amended by this Amendment No. 1 (the “Amended Agreement”, and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under together with this Agreement.Amendment No. 1, the “Amendment Documents”);
(bii) The the execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby Amendment Documents are within the Borrower’s corporate powers, partnership powers and have been duly authorized by all necessary corporate partnership or other organizational action andon the part of the Borrower;
(iii) the execution, if required, stockholder action, delivery and performance of this Amendment No. 1
(a) do not 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, (ib) contravene will not violate any applicable law or regulation or the charter or other constitutive documents or charter, by-laws or other organizational documents of the Parent Companies, the Borrower or any Subsidiary of the Borrowerits Subsidiaries or any order, (ii) violate any law judgment or order decree of any Governmental Authority or Authority, except for any provision violation of any indenture applicable law or other material agreement or instrument regulation that would not reasonably be expected to which the Borrower or any Subsidiary of the Borrower is have a party or by which any of them or any of their property is or may be bound or affectedMaterial Adverse Effect, (iiic) conflict with, will not violate or result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument binding upon the Parent Companies, the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Parent Companies, the Borrower or any of its Subsidiaries, except for any violation or default that would not reasonably be expected to have a Material Adverse Effect, and (ivd) will not result in the creation or imposition of any Lien upon or with respect to on any property or assets now owned or hereafter acquired by asset of the Parent Companies, the Borrower or any Subsidiary of its Subsidiaries;
(iv) each of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have Amendment Documents has been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, Borrower and any Notes when delivered hereunder will be, the constitutes legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectterms, except as to enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generallygenerally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
(v) the representations and warranties made or deemed made by the Borrower in any Loan Document 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) on the Amendment Effective Date except to the extent that such 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 (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) on and as of such earlier date); and
(vi) no Default or Event of Default has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment No. 1.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Brixmor Operating Partnership LP)
Representations and Warranties of the Borrower. The Borrower Effective as of the Closing Date, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the --------- following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) Each of the Borrower it is a national banking association and its Subsidiaries (i) is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) America and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Trust Agreement and any Notes (assuming due authorization, execution and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other Operative Agreements to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party and each other agreement agreement, instrument and document to be executed and delivered by it in connection with or instrument as contemplated thereby by each such Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party;
(b) the execution, delivery and performance of each Operative Agreement to which it is or is to will be a party party, either in its individual capacity or (assuming due authorization, execution and to borrow under this Agreement.
(b) The execution, delivery and performance of the Trust Agreement by the Borrower of this Agreement Holders) as the Owner Trustee, as the case may be, has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law Legal Requirement relating to its banking or order trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict withwould materially and adversely affect its ability, result in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon Governmental Action by any Governmental Authority regulating its banking or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.trust powers;
(c) No authorizationthe Trust Agreement and, approval or other action by, and no notice to or filing with, any Governmental Authority assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower Holders, each other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before the Closing Date will be, duly executed and delivered by the Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower Trust Company or the Owner Trustee, as the case may be, in accordance with their respective the terms thereof;
(d) there is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party, either in its individual capacity or as the Owner Trustee, before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party;
(e) it, either in its individual capacity or as the Owner Trustee, has not assigned or transferred any of its right, title or interest in or under the Lease or its interest in any Property or any portion thereof, except in accordance with the Operative Agreements;
(f) no Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) except as otherwise contemplated in the Operative Agreements, the proceeds of the Loan and Holder Advance shall not be applied by the Owner Trustee, either in its individual capacity or as the Owner Trustee, for any purpose other than as specified in Sections 5.1 and 5.2 hereof;
(h) neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar security relating to a Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) the Owner Trustee's principal place of business, chief executive office and office where the documents, accounts and records relating to applicable bankruptcythe transactions contemplated by this Agreement and each other Operative Agreement are kept are located at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, reorganization▇▇▇▇ ▇▇▇▇ ▇▇▇▇, insolvency▇▇▇▇ ▇▇▇▇▇;
(j) the Owner Trustee is not engaged principally in, moratorium and similar laws affecting creditors’ rights generallydoes not have as one of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of the Loan or the Holder Advance will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulation T, U, or X of the Board;
(k) the Owner Trustee is not an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act;
(l) each Property is free and clear of all Lessor Liens attributable to the Owner Trustee, either in its individual capacity or as the Owner Trustee; and
(m) the Owner Trustee, in its trust capacity, is not a party to any documents, instruments or agreements other than the Operative Agreements executed by the Owner Trustee, in its trust capacity.
Appears in 1 contract
Representations and Warranties of the Borrower. The To induce the Lender to make the loan contemplated under this Agreement, the Borrower represents hereby makes the following representations and warrants as follows:warranties which shall forever survive the execution and delivery of this Agreement, the Note and any Conversion Shares (together this Agreement and the Note are the “Transaction Documents”):
(a) Each of the Borrower is a company incorporated, organized and its Subsidiaries (i) is duly organized, validly existing and in good standing subsisting under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.incorporation;
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation each of the transactions contemplated thereby are within the Borrower’s corporate powersTransaction Documents, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement isdelivered, and any Notes when delivered hereunder will be, the constitute legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectits terms, as to the enforcement of remedies, subject to applicable bankruptcy, reorganization, insolvency, moratorium insolvency and similar laws affecting creditors’ rights generally);
(c) the execution, delivery and performance by the Borrower of the Transaction Documents, the incurrence of the Indebtedness under the Loan and the related Note, and the issuance of the applicable Conversion Shares, have been duly authorized by all requisite corporate, and if required, shareholder, action on the part of the Borrower;
(d) neither the execution and delivery of the Transaction Documents nor, subject to obtaining the TSX Approval, compliance with the terms, conditions and provisions thereof:
(i) will conflict with or result in a breach of any of the terms, conditions or provisions of:
(A) the constating documents of the Borrower or the terms of any class or series of shares of the Borrower;
(B) any agreement, instrument or arrangement to which the Borrower is now a party or by which it is or may be bound, or constitute a default thereunder;
(C) any judgment or order, writ, injunction or decree of any court; or
(D) any applicable law or governmental regulation;
(ii) will contravene, conflict with or result in a violation or breach of, or trigger any Material Adverse Effect in the affairs of the Borrower;
(iii) will give rise to any pre-emptive right (which has not been waived or will be waived prior to the closing of the transactions contemplated hereunder) or give any person the right to:
(A) trigger or accelerate the maturity or performance of any contract, golden parachute or any other provision in any contract, to which the Borrower is a party or trigger the payment of any monies by the Borrower which would not otherwise be payable; or
(B) cancel, terminate or modify any contract to which the Borrower is a party;
(iv) will require the Borrower to obtain any consent, license, certification or approval from any third party which has not been duly obtained;
(e) upon receipt of the proceeds of the Loan by the Borrower, the Note issued in respect thereof will be duly and validly created and authorized and will be issued and delivered as fully paid to the Lender in compliance with all applicable Securities Laws, and the Lender will be the legal and registered owner of the Note and, upon issuance, the Conversion Shares, all of which will be free and clear of all pre-emptive rights, mortgages, liens, charges, security interests, adverse claims, pledges and demands whatsoever arising by reason of the acts or omissions of the Borrower, other than under applicable Securities Laws;
(f) the Borrower is not an insolvent person within the meaning of the Bankruptcy and Insolvency Act (Canada) nor has the Borrower made an assignment in favour of its creditors nor a proposal in bankruptcy to its creditors or any class thereof nor had any petition for a receiving order presented in respect of it. The Borrower has not initiated proceedings with respect to a compromise or arrangement with its creditors or for its winding up, liquidation or dissolution. No receiver has been appointed in respect of the Borrower or any of its property or assets and no execution or distress has been levied upon any of its property or assets of the Borrower. No act or proceeding has been taken or authorized by or against the Borrower with respect to any amalgamation, merger, consolidation, arrangement or reorganization of, or relating to, the Borrower nor have any such proceedings been authorized by any other person;
(g) except as would not reasonably be expected to result in a Material Adverse Effect, the Borrower is in compliance with the terms of all contracts to which it is a party;
(h) the Borrower is in material compliance with the requirements of all applicable laws, rules, regulations and decrees, directives and orders of any governmental authority that are applicable to it or to any of its properties, and has obtained all material licenses and permits that are necessary for the conduct of its business;
(i) there are no actions, suits or proceedings, including appeals or applications for review or any pending actions, suits or proceedings, against the Borrower before any court or administrative agency which could reasonably be expected to result in a Material Adverse Effect;
(j) except as would not reasonably be expected to result in a Material Adverse Effect, the Borrower has good and marketable legal and beneficial title to all of its property and assets, free and clear of any and all security interests, liens, charges and encumbrances;
(k) any taxes and assessments and government charges or liens imposed on property, earnings, labour or materials which might result in a lien or charge upon the property of the Borrower have been paid by the Borrower, unless such taxes, assessments, charges or liens are being diligently contested in good faith and in respect of which (i) an amount in cash sufficient to pay such taxes, assessments, charges or other statutory Liens or security interests shall have been deposited with a court, a taxing or assessing authority or the Lender or (ii) a surety bond, satisfactory to the Lender, for such amount shall have been deposited with the Lender; and
(l) minority shareholders’ approval of the Borrower and the requirement for a valuation with respect to the Loan and the Indebtedness under this Agreement and the Note are not required pursuant to Multilateral Instrument 61-101 Protection of Minority Securityholders in Special Transactions.
Appears in 1 contract
Sources: Convertible Loan Agreement (Battle Mountain Gold Inc.)
Representations and Warranties of the Borrower. The Borrower ----------------------------------------------- represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, indicated in the case recital of any such Subsidiary, where the failure so parties to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to which it is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the Borrower's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law law, rule or order regulation (including, without limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of any indenture order, writ, judgment, injunction, decree, determination or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement 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 (iv) 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 property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 or performance by the Borrower of this Agreement Amendment or any Notes of the Loan Documents, as amended hereby, to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effecta party.
(d) This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isamendment and each of the other Loan Documents, and any Notes when delivered hereunder will beas amended hereby, to which the Borrower is a party are legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms terms.
(subjecte) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than as set forth on Schedule 4.01(j) to the Credit Agreement) or (ii) purports to affect the legality, validity or enforceability of this Amendment or any of 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 enforcement date of remediesthis Amendment, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)in which case as of such specific date.
(g) No Defaults exists under the Credit Agreement.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower Effective as of the Initial Closing Date, and the date of each Advance and the date of issuance of each Letter of Credit, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants as follows:
(ain addition to any representations or warranties made in any Officer's or Secretary's Certificate delivered pursuant hereto, which representations and warranties are incorporated herein by reference) Each to each of the Borrower other parties hereto that the execution, delivery and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws performance of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this each Operative Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to will be a party party, either in its individual capacity or (assuming due authorization, execution and to borrow under this Agreement.
(b) The execution, delivery and performance of the Trust Agreement by the Borrower of this Agreement Bank) as the Owner Trustee, as the case may be, has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law Legal Requirement relating to its banking or order trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict withwould materially and adversely affect its ability, result in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon or with respect to any property or assets now owned or hereafter acquired Governmental Action by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery regulating its banking or trust powers. The Owner Trustee further reaffirms its representations and performance by the Borrower of this Agreement warranties under each Bond Document and agrees that each and every representation and warranty made therein and in any certificate or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly other document executed and delivered by the Borrower. This Agreement is, in connection therewith is true and any Notes when delivered hereunder will be, the legal, valid and binding obligation accurate as of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)date hereof.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, exceptas applicable and is duly qualified to do business in, and is in the case of any such Subsidiarygood standing in, all other jurisdictions where the nature of its business or the nature of property owned or used by it makes such qualification necessary, except where such failure so to qualify would not result in a Material Adverse Effect, . Each of the Borrower and its Subsidiaries has all requisite corporate (iior other applicable) has the requisite power powers and authority to own or lease and operate its property and assets properties and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect conducted and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is as proposed to be a party and to borrow under this Agreementconducted.
(b) The execution, delivery and performance by the Borrower and, where applicable, each Subsidiary of this Agreement and any Notes Agreement, each Loan Document to be delivered by which it and the consummation of the transactions contemplated thereby is a party are within the Borrower’s or such Subsidiary’s corporate (or other applicable) powers, have been duly authorized by all necessary corporate action and, if required, stockholder (or other applicable) action, and do not contravene (i) contravene the charter Borrower’s or such Subsidiary’s certificate of incorporation (or other constitutive documents applicable formation document or by-laws operating agreement), (ii) any law, rule or regulation applicable to the Borrower or such Subsidiary or (iii) any contractual or legal restriction binding on or affecting the Borrower or such Subsidiary, and will not result in or require the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower or its Subsidiaries, except as provided in this Agreement and any Subsidiary other the Loan Document.
(c) No Governmental Action is required for the execution or delivery by the Borrower or its Subsidiaries of this Agreement, any other Loan Document to which it is a party or for the performance by the Borrower or its Subsidiaries of its obligations under this Agreement, any other Loan Document to which it is a party other than those which have previously been duly obtained, are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture threatened appeal or other material agreement proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or instrument appeal with respect thereto have expired.
(d) This Agreement and each Loan Document to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower or Subsidiary party thereto, enforceable against the Borrower or applicable Subsidiary in accordance with their respective terms (subjectits terms, as subject to the enforcement effect of remediesbankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium and other similar laws of general application affecting creditors’ rights and remedies of creditors generally).
(e) Except as disclosed in the Disclosure Documents, there is no pending or, to the Borrower’s knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that has a reasonable possibility of resulting in a Material Adverse Effect.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2012, and the related consolidated statements of income, retained earnings 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 and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Since December 31, 2012, there has been no Material Adverse Effect, or material adverse change in the facts and information regarding such entities as represented to the Restatement Effective Date.
(g) The making of Loans and the use of the proceeds thereof will comply with all provisions of Applicable Law in all material respects.
(h) Neither the Borrower nor any Subsidiary of the Borrower is an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Term Loan Credit Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower Effective as of the Initial Closing Date, Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the following paragraphs (h), (i), (j) and (k) are made solely in its capacity as the Borrower:
(a) Each of the Borrower It is a national banking association and its Subsidiaries (i) is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) America and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Trust Agreement and any Notes (assuming due authorization, execution and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other agreement or instrument contemplated thereby Operative Agreements to which it Trust Company or the Owner Trustee, as the case may be, is or is to will be a party and each other agreement, instrument and document to borrow under this Agreement.be executed and delivered by it on or before such Closing Date in connection with or as contemplated by each such Operative Agreement to which Trust Company or the Owner Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party, either in its individual capacity or (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of this Agreement Holders) as the Owner Trustee, as the case may be, has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law current law, governmental rule or order regulation relating to its banking or trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict withwould materially and adversely affect its ability, result in its individual capacity or as Owner Trustee, to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon Governmental Action by any Governmental Authority regulating its banking or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.trust powers;
(c) No authorizationThe Trust Agreement and, approval or other action by, and no notice to or filing with, any Governmental Authority assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower Holders, each other Operative Agreement to which Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Operative Agreement to which Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against Trust Company or the Borrower Owner Trustee, as the case may be, in accordance with their respective the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party, either in its individual capacity or as the Owner Trustee, before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability, in its individual capacity or as Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party;
(e) It has not assigned or transferred any of its right, title or interest in or under the Lease or the Agency Agreement except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of the Loans and Holder Fundings shall not be applied by the Owner Trustee for any purpose other than the payment of Transaction Expenses and the fees, expenses and other disbursements referenced in Sections 9.1(a), 9.1(b) and 13.6 of this Agreement, the purchase and/or lease of the Properties, the acquisition of the Equipment, the construction of Improvements and the payment of interest regarding the Loans and the payment of the Holder Yield regarding the Holder Fundings, in each case to the extent accrued under the Credit Agreement or Trust Agreement (as the case may be) during the period prior to the Basic Term Commencement Date with respect to a particular Property;
(h) Neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the COSI Trust Estate or the Notes, or in any similar security relating to a Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the COSI Trust Estate or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The Owner Trustee's chief place of business, chief executive office and office where the documents, accounts and records relating to applicable bankruptcythe transactions contemplated by this Agreement and each other Operative Agreement are kept are located at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, reorganization▇▇▇▇ ▇▇▇▇ ▇▇▇▇, insolvency▇▇▇▇ ▇▇▇▇▇;
(j) The Owner Trustee is not engaged principally in, moratorium and similar laws affecting creditors’ rights generallydoes not have as one of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of the Loans or the Holder Fundings will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulations G, T, U, or X of the Board of Governors of the Federal Reserve System of the United States; and
(k) The Owner Trustee is not an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act.
Appears in 1 contract
Sources: Participation Agreement (Capital One Financial Corp)
Representations and Warranties of the Borrower. The ---------------------------------------------- Borrower represents and warrants to the Agents and the Banks as follows:
(a1) Each of the The Borrower and its Subsidiaries is (i) is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the State of Delaware and (ii) qualified to do business and in good standing in each jurisdiction where the ownership of its organizationproperties or the conduct of its business requires such qualification, except, in the case of any such Subsidiary, except where the failure to be so to qualify qualified would not result in have a Material Adverse Effect, .
(ii2) The Borrower has the requisite all corporate power and authority to own its property authority, governmental permits, licenses, consents, authorizations, orders and assets approvals and other authorizations and powers as are necessary to carry on its business substantially as now presently conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify have such power, authority, permits, licenses, consents, authorizations, orders and approvals would not result in have a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementEffect.
(b3) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it of the Notes, and the consummation Borrowings and other extensions of the transactions contemplated thereby credit hereunder, are within the Borrower’s 's corporate powers, power and authority and have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerproceedings.
(c4) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for Neither such authorization nor the due execution, delivery and performance by the Borrower of this Agreement or of the Notes, nor any Notes to be delivered by itBorrowing or Letter of Credit when made or issued, as the case may be, hereunder 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 for the consummation acceleration of any obligation under, or cause the creation of any Lien on any of the transactions contemplated hereby and therebyassets of the Borrower pursuant to the provisions of, except for such authorizationsany indenture, approvals, actions, notices loan or filings that have been made credit agreement or obtained and are in full force and effectother material instrument to which it is a party or by which it is bound.
(d5) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered Assuming its due execution by the Borrower. This Banks and the Agents, this Agreement is, and any Notes when delivered hereunder will be, the constitutes a legal, valid and binding obligation agreement of the Borrower enforceable against and the Notes, when duly executed on behalf of the Borrower and delivered in accordance with their respective terms this Agreement, will constitute legal, valid and binding obligations of the Borrower.
(subject1) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of December 31, as 1996 and the related consolidated statements of income and cash flows for the fiscal year ended that date, reported on by Coopers & ▇▇▇▇▇▇▇, L.L.P., copies of which have been delivered to the enforcement Administrative Agent, present fairly, in all material respects, the consolidated financial position of remediesthe Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year, in conformity with generally accepted accounting principles consistently applied.
(2) The unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of September 30, 1997 and the related unaudited consolidated statements of income and cash flows for the nine- month period then ended, copies of which have been delivered to applicable bankruptcythe Administrative Agent, reorganizationpresent fairly, insolvencyin all material respects, moratorium in conformity with generally accepted accounting principles applied on a basis consistent with the financial statements referred to in paragraph (b)(1) of this Section, the consolidated financial position of the Borrower and similar laws affecting creditors’ rights generallyits 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 and not including footnotes or schedules required by generally accepted accounting principles).
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2008, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, all audited and certified by Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its Subsidiaries on a Consolidated basis as of the dates thereof required to be reflected or disclosed therein in accordance with GAAP.
(f) There has been no Material Adverse Change since December 31, 2008.
(g) Except as set forth in the financial statements referred to in subsection (e) of this Section 4.01, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries or any business, property or rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, is reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation (including, without limitation, any ERISA or environmental law, rule or regulation), or in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default is reasonably expected to result in a Material Adverse Effect.
(h) Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Advance will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which entails a violation of, or which is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X thereof.
(i) Neither the Borrower nor any of its Subsidiaries is an “investment company”, as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
(j) The Borrower will use the proceeds of the Advances as a commercial paper backstop and for other lawful general corporate purposes.
(k) Each of the Borrower and its Subsidiaries has filed or caused to be filed all federal income tax and all other material state and local tax returns required to have been filed by it and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, except taxes that are otherwise permitted to remain unpaid in accordance with the provisions of Section 5.01(b).
(l) All information, reports, financial statements, exhibits or schedules prepared or furnished by or on behalf of the Borrower to the Agent, Arrangers or any Lender in connection with the negotiation of this Agreement or delivered pursuant hereto contained, contains or will contain no material misstatement of fact and did not omit, does not omit and will not omit 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.
Appears in 1 contract
Sources: 364 Day Credit Agreement (United Parcel Service Inc)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) 5.1. Each of the Borrower representations and its Subsidiaries (i) is duly organizedwarranties set forth in the Credit Agreement, validly existing including, without limitation, in Article IV of the Credit Agreement, and in good standing each other Loan Document, is true, correct and complete on and as of the date hereof as though made on the date hereof. In addition, the Borrower hereby represents, warrants and affirms that the Credit Agreement and each of the other Loan Documents remains in full force and effect.
5.2. As of the date hereof and after giving effect to this Amendment, there exists no Default or Event of Default under the laws Credit Agreement or any other Loan Document, and no event which, with the giving of the jurisdiction notice or lapse of its organizationtime, exceptor both, in the case would constitute a Default or Event of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementDefault.
(b) 5.3. The execution, delivery and performance by the Borrower each applicable Loan Party of this Agreement Amendment and/or the reaffirmations and any Notes to be delivered by it confirmations attached hereto and each other Loan Document and the consummation of the transactions transaction contemplated thereby by Section 2 of this Amendment are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not not, and will not, (i) contravene the such Loan Party's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerbylaws, (ii) violate any law (including, without limitation, the Securities Act of 1933, as amended, or order the Securities Exchange Act of 1934, as amended), rule, regulation (including, without limitation, any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary Regulation of the Borrower is a party Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such indenturematerial contract, agreement loan agreement, indenture (including, without limitation, the Senior Subordinated Note Indenture), mortgage, deed of trust, lease or other material instrument or agreement binding on or affecting any Loan Party, any of its Subsidiaries or any of their respective properties or (iv) except for the Liens created under the Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of its Subsidiaries. Neither any Loan Party 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 (including, without limitation, the BorrowerSenior Subordinated Note Indenture), mortgage, deed of trust, lease or other instrument or agreement, the violation or breach of which could reasonably be expected to have a Material Adverse Effect.
(c) 5.4. Each of this Amendment and each other Loan Document has been duly executed and delivered by each Loan Party party hereto and thereto. Each of this Amendment and each other Loan Document is the legal, valid and binding obligation of each Loan Party party hereto and thereto, enforceable against such Loan Party in accordance with its terms.
5.5. No authorization, 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 (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement Amendment, any other Loan Document or any Notes other agreement or document related hereto or thereto or contemplated hereby or thereby to which it is or is to be delivered a party or otherwise bound, (ii) the grant by it, or for the consummation any Loan Party of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered Liens granted by it when delivered hereunder will have beenpursuant to the Collateral Documents, duly executed and delivered (iii) the perfection or maintenance of the Liens created by the Borrower. This Agreement is, and Collateral Documents (including the first priority nature thereof) or (iv) the exercise by the Administrative Agent or any Notes when delivered hereunder will be, Lender Party of its rights under the legal, valid and binding obligation Loan Documents or remedies in respect of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as Collateral pursuant to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)Collateral Documents.
Appears in 1 contract
Sources: Credit Agreement (Lico Steel Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants to each of the other parties hereto as of the Closing Date and the Funding Date as follows:
(a) Each of the Borrower : It is a business trust and its Subsidiaries (i) is duly organized, formed and validly existing and in good standing under the laws of the jurisdiction State of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) Delaware and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Operative Agreements to which it is a party and (assuming due authorization, execution and delivery of the Trust Agreement by the parties thereto) has the trust power and any Notes authority to enter into and perform the obligations under each of the other agreement or instrument contemplated thereby Operative Agreements to which it is or is will be a party, and each other agreement, instrument and document to be executed and delivered by it on or before the Closing Date in connection with or as contemplated by each such Operative Agreement to which it is or will be a party and to borrow under this Agreement.
(b) party; The execution, delivery and performance of each Operative Agreement to which it is or will be a party (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of this Agreement parties thereto) has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law Legal Requirement relating to its trust powers, (iii) does or order will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) the Trust Agreement or Certificate of Trust, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict with, result in would materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon or with respect to any property or assets now owned or hereafter acquired Governmental Action by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority regulating its trust powers; The Trust Agreement and, assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the parties hereto, each other Operative Agreement to which the Borrower is or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by it, and each Operative Agreement to which it is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower it in accordance with their respective the terms (thereof; There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party; It has not assigned or transferred any of its right, title or interest in or under the Lease or its interest in the Property or any portion thereof, except in accordance with the Operative Agreements; No Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing; Except as otherwise contemplated in the Operative Agreements, the proceeds of the Loans and Holder Advances shall not be applied by it for any purpose other than the purchase and/or lease of the Property and the payment of Transaction Expenses and the fees, expenses and other disbursements referenced in Sections 8.1(a) and 8.1(b) of this Agreement; Neither it nor any Person authorized by it to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar security relating to the Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither it nor any Person authorized by it to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended; The principal place of business, chief executive office and office where the documents, accounts and records relating to applicable bankruptcythe transactions contemplated by this Agreement and the other Operative Agreements are located at ▇▇▇▇▇▇ Square North, reorganization▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, insolvency▇▇▇▇▇▇▇▇▇▇, moratorium ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇; It is not engaged principally in, and similar laws affecting creditors’ rights generallydoes not have as one of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of the Loans or the Holder Advances will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulations T, U, or X of the Board of Governors of the Federal Reserve System of the United States; The Property is free and clear of all Lessor Liens attributable to it; It is not (i) an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act, or (ii) a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935; and It is not a party to any documents, instruments or agreements other than the Operative Agreements executed by it.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, indicated in the case recital of any such Subsidiary, where the failure so parties to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementAmendment.
(b) The execution, delivery and performance by the Borrower of this Agreement Amendment and any Notes the Loan Documents, as amended hereby, to which it is or is to be delivered by it and the consummation of the transactions contemplated thereby a party, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the Borrower's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law (including, without limitation, the Securities Exchange Act of 1934, as amended, and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule or order regulation (including, without 5 5 limitation, Regulation X of any Governmental Authority the Board of Governors of the Federal Reserve System), or any provision of any indenture order, writ, judgment, injunction, decree, determination or other material agreement award, binding on or instrument to which affecting the Borrower or any Subsidiary of the Borrower is a party or by which any of them its Subsidiaries or any of their property is or may be bound or affectedproperties, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting the Borrower, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorization, 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 or performance by the Borrower of this Agreement Amendment or any Notes of the Loan Documents, as amended hereby, to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effecta party.
(d) This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isAmendment and each of the other Loan Documents, and any Notes when delivered hereunder will beas amended hereby, to which the Borrower is a party is the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms its terms.
(subjecte) There is no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries (including, without limitation, any Environmental Action) pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment or any of the other Loan Documents, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)amended hereby.
Appears in 1 contract
Sources: Credit Agreement (Iron Age Corp)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) 5.1. Each of the Borrower representations and its Subsidiaries (i) is duly organizedwarranties set forth in the Credit Agreement, validly existing including, without limitation, in Article IV of the Credit Agreement, and in good standing each other Loan Document, is true, correct and complete on and as of the date hereof as though made on the date hereof. In addition, the Borrower hereby represents, warrants and affirms that the Credit Agreement and each of the other Loan Documents remains in full force and effect.
5.2. As of the date hereof after giving effect to this Amendment, there exists no Default or Event of Default under the laws Credit Agreement or any other Loan Document, and no event which, with the giving of the jurisdiction notice or lapse of its organizationtime, exceptor both, in the case would constitute a Default or Event of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementDefault.
(b) 5.3. The execution, delivery and performance by the Borrower each applicable Loan Party of this Agreement Amendment or the reaffirmations and any Notes to be delivered by it confirmations attached hereto and each other Loan Document and the consummation of each of the transactions contemplated thereby consented to in Sections 3.1 and 3.2 of this Amendment by each applicable Loan Party are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not not, and will not, (i) contravene the such Loan Party's charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerbylaws, (ii) violate any law (including, without limitation, the Securities Act of 1933, as amended, or order the Securities Exchange Act of any Governmental Authority 1934, as amended), rule, regulation (including, without limitation, Regulation T, U or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary X of the Borrower is a party Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such indenturematerial contract, agreement loan agreement, indenture (including, without limitation, the Senior Subordinated Note Indenture), mortgage, deed of trust, lease or other material instrument or agreement binding on or affecting any Loan Party, any of its Subsidiaries or any of their respective properties or (iv) except for the Liens created under the Collateral Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of its Subsidiaries. Neither any Loan Party 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 (including, without limitation, the BorrowerSenior Subordinated Note Indenture), mortgage, deed of trust, lease or other instrument or agreement, the violation or breach of which could reasonably be expected to have a Material Adverse Effect.
(c) 5.4. Each of this Amendment and each other Loan Document has been duly executed and delivered by each Loan Party party hereto and thereto. Each of this Amendment and each other Loan Document is the legal, valid and binding obligation of each Loan Party party hereto and thereto, enforceable against such Loan Party in accordance with its terms.
5.5. No authorization, 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 (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement Amendment, any other Loan Document or any Notes other agreement or document related hereto or thereto or contemplated hereby or thereby to which it is or is to be delivered a party or otherwise bound, (ii) the grant by it, or for the consummation any Loan Party of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered Liens granted by it when delivered hereunder will have beenpursuant to the Collateral Documents, duly executed and delivered (iii) the perfection or maintenance of the Liens created by the Borrower. This Agreement is, and Collateral Documents (including the first priority nature thereof) or (iv) the exercise by the Administrative Agent or any Notes when delivered hereunder will be, Lender Party of its rights under the legal, valid and binding obligation Loan Documents or remedies in respect of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as Collateral pursuant to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)Collateral Documents.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Loan Parties and the Subsidiaries of the Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effectincorporation, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and Effect, (iv) in the case of each of the BorrowerLoan Parties, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes each Loan Document to which it is or is to be a party and each other agreement or instrument contemplated thereby to which it is or is to be a party and (v) in the case of the Borrower, has the corporate power and authority to borrow under this Agreement.
(b) The execution, delivery and performance by each of the Borrower Loan Parties of this Agreement and any Notes each Loan Document to which it is or is to be delivered by it a party and the consummation of the transactions contemplated thereby are within the Borrowersuch Loan Party’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-by- laws of the Borrower such Loan Party or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture indenture, agreement or other material agreement or instrument to which the Borrower any Loan Party or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower any Loan Party or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower any Loan Party of this Agreement Agreement, the Notes or any Notes other Loan Document to which it is or is to be delivered by ita party, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any each of the Notes to be delivered by it and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each of the BorrowerLoan Parties party thereto. This Agreement is, and any each of the Notes and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each of the Borrower Loan Parties party thereto enforceable against the Borrower such Loan Party in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
(i) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2002, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, all audited and certified by Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Borrower and its Subsidiaries at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its Subsidiaries on a Consolidated basis as of the dates thereof.
(f) There has been no Material Adverse Change since December 31, 2002.
(g) Each of the Borrower and its Material Subsidiaries has good and marketable title to, or valid leasehold interests in, all their material properties and assets, except for such properties as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business and except for minor defects in title that do not interfere with the ability of the Borrower or any of its Material Subsidiaries to conduct its businesses as currently conducted. All such properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 5.02(b).
(h) Except as set forth in the financial statements referred to in subsection (e) of this Section 4.01, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries or any business, property or rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or any other Loan Document or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation, or in default with respect to any judgement, writ, injunction or decree of any Governmental Authority, where such violation or default could result in a Material Adverse Effect.
(i) Neither the Borrower nor any of its Subsidiaries is a party to any agreement or instrument or subject to any corporate restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Debt, or any other material agreement or instrument to which it is a party or by which it or any of its properties or assets are or may be bound, where such default could result in a Material Adverse Effect.
(j) Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Advance will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose or (ii) for any purpose which entails a violation of, or which is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X thereof.
(k) Neither the Borrower nor any of its Subsidiaries is (i) an “investment company”, as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended or (ii) a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended.
(l) The Borrower will use the proceeds of the Advances only as a commercial paper backstop and for lawful general corporate purposes.
(m) Each of the Borrower and its Subsidiaries has filed or caused to be filed all federal, state and local tax returns required to have been filed by it and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, except taxes that are otherwise permitted in accordance with the provisions of Section 5.01(b).
(n) No information, report, financial statement, exhibit or schedule prepared or furnished by or on behalf of the Borrower to the Administrative Agent, the Documentation Agent, the Arranger or any Lender in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto contained, contains or will contain any material misstatement of fact or omitted, omits or will omit 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.
(o) Each of the Borrower and its Subsidiaries is in compliance in all material respects with the applicable provisions of ERISA and the regulations and published interpretations thereunder that are applicable to the Borrower and its Subsidiaries. As of the date hereof, no Reportable Event has occurred as to which the Borrower or any of its Subsidiaries was required to file a report with the PBGC, and no material unfunded vested liabilities exist under any Plan.
(p) Each of the Borrower and its Subsidiaries is in substantial compliance with all applicable federal, state and local environmental laws, regulations and ordinances governing its business, properties or assets with respect to discharges into the ground and surface water, emissions into the ambient air and generation, storage, transportation and disposal of waste materials or process by-products, except such noncompliances as are not likely to have a Material Adverse Effect. All licenses, permits or registrations required for the business of the Borrower and its Subsidiaries under any federal, state or local environmental laws, regulations or ordinances have been secured, and the Borrower and each Subsidiary are in substantial compliance therewith, except such licenses, permits or registrations the failure to secure or to comply therewith are not likely to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organizedorganized or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the all requisite power and authority to own or lease its property and assets and to carry on its business as now conductedand is duly qualified, except, licensed and in good standing under the case laws of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification is requiredqualification, except where the failure to be so to qualify qualified or in good standing would not result in have a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementEffect.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes each Loan Document to be delivered by which it is a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrowersuch Loan Party’s corporate or other organizational powers, have been duly authorized by all necessary corporate action and, if required, stockholder or other organizational action, and do not conflict with or contravene or result in any breach of (i) contravene the charter or other constitutive documents or such Loan Party’s charter, by-laws of the Borrower or any Subsidiary of the Borrowerother organizational documents, (ii) violate any law or order any material contractual restriction binding on or affecting such Loan Party or any of its Subsidiaries or (iii) any material order, injunction, writ or decree of any Governmental Authority or any provision of any indenture or other material agreement or instrument arbitral award to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them such Loan Party or any of their property its Subsidiaries is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowersubject.
(c) No authorization, 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 Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and therebyLoan Parties of each Loan Document to which it is a party, except for such authorizations, approvals, actions, notices or and filings that have been duly obtained, taken, given or made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have beenbe, duly executed and delivered by the BorrowerBorrower and each other Loan Party that is a party thereto. This Agreement is, and any Notes each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower and each other Loan Party that is a party thereto, enforceable against the Borrower and each other Loan Party that is a party thereto in accordance with their respective terms (subjectexcept as enforceability may be limited by applicable bankruptcy, as to insolvency, or similar laws affecting the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generallygenerally or by equitable principles relating to enforceability.
(e) The (i) audited Consolidated balance sheet of the Borrower and its Subsidiaries, and the related Consolidated statements of income, equity and cash flows as of and for the fiscal year ended January 31, 2014 and (ii) unaudited Consolidated balance sheet of the Borrower and its Subsidiaries, and the related Consolidated statements of income, equity and cash flows as of and for the fiscal quarters ended May 2, 2014, August 1, 2014 and October 31, 2014, in each case: (x) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (y) are complete and accurate in all material respects and fairly present, in all material respects, the financial condition of the Borrower and its Consolidated Subsidiaries as of the date thereof and results of operations for the period covered thereby. Since January 31, 2014, there has been no Material Adverse Change.
(f) There is no pending or (to the knowledge of the Borrower) threatened action, suit, investigation, litigation or proceeding pending or threatened in writing, including pursuant to any Environmental Law, affecting the Consolidated Group before any court, Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
(g) None of the Loan Parties is engaged in the business of purchasing or carrying, or 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) None of the Loan Parties is an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) The Borrower has made available, through the reports and other filings made by the Borrower under the Exchange Act or Securities Act or through the Agent, to the Lenders all material agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject and all reports or other filings made by the Borrower under the Exchange Act or Securities Act, and disclosed, through the reports and other filings made by the Borrower under the Exchange Act or Securities Act or otherwise, all other matters known to it that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information certified as being true and correct by or on behalf of the Borrower or any of its Subsidiaries to the Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so certified) contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, taken as a whole and in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions the Borrower believed to be reasonable at the time.
(j) The Borrower and its Subsidiaries, on a Consolidated basis, are Solvent.
(k) The Borrower and its Subsidiaries have timely filed all material Tax returns and reports required to be filed, and have paid all material Taxes, levied or imposed upon them or their property, income or assets, that are due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP.
(l) As of the Amendment and Restatement Effective Date, the Borrower has no Subsidiaries other than those specifically disclosed on Schedule 4.01(l).
(m) The on-going operations of the Borrower and each of its Subsidiaries comply in all respects with all Environmental Laws, except such non-compliance which would not reasonably be likely to have a Material Adverse Effect. The Borrower and each of its Subsidiaries have obtained all Environmental Permits that are required under any Environmental Law necessary for its ordinary course operations, all such Environmental Permits are in good standing, and the Borrower and each of its Subsidiaries are in compliance with all material terms and conditions of such Environmental Permits, except where the failure to obtain or maintain such Environmental Permits or such noncompliance would not be reasonably likely to have a Material Adverse Effect.
(n) The Borrower and each of its Subsidiaries have good and marketable title to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for Liens permitted by Section 5.03(a) and for such defects in title as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(o) The Borrower and each of its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by such Loan Party and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(p) Neither the Borrower nor any of its Subsidiaries or Affiliates, nor any director, officer, or employee, nor, to the knowledge of the Borrower or any of its Subsidiaries, any agent, representative or other person associated with or acting on behalf of the Borrower or any of its Subsidiaries or Affiliates is, or is (to the knowledge of the Borrower) Controlled by Persons that are, currently the subject or the target of any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or any other relevant sanctions authority (collectively, “Sanctions”), nor are the Borrower or any of its Subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a “Sanctioned Country”).
(q) No Advance, nor the proceeds from any Advance or Letter of Credit, has been or will be used, to lend, contribute, provide or has otherwise been made or will otherwise be made available for the purpose of funding any activity or business in any Sanctioned Country or for the purpose of funding any prohibited activity or business of any Person located, organized or residing in any Sanctioned Country or who is a Person who is the subject or target of Sanctions or, to the knowledge of the Borrower or any of its Subsidiaries, any Person owned by or controlled by, or acting for or on behalf of a Person who is the subject or target of Sanctions, absent valid and effective licenses and permits issued by the government of the United States or otherwise in accordance with applicable laws, or in any other manner that will result in any violation by any Lender, any Issuing Bank or the Agent of any Sanctions.
(r) Neither the Borrower nor any of its Subsidiaries or Affiliates, nor any director, officer, or employee, nor, to the knowledge of the Borrower or any of its Subsidiaries, any agent, representative or other person associated with or acting on behalf of the Borrower or any of its Subsidiaries or Affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any Person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage to the extent the same would be a violation of any law applicable to the Borrower, such Subsidiary or such Affiliate; and the Borrower and each of its Subsidiaries and Affiliates have conducted their respective businesses in compliance with anti-corruption laws applicable to the Borrower or such Subsidiary or Affiliate and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.
(s) The Borrower and its Subsidiaries are in compliance with all laws, regulations and orders and have all requisite governmental licenses, authorizations, consents and approvals to operate their respective business, except for any such non-compliance or failure to have which would not reasonably be likely to have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is in violation of any legal requirement relating to any laws with respect to terrorism or money laundering, including Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 and the Patriot Act.
(t) No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect. As of the most recent valuation date for any Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to result in the funding attainment percentage dropping below 60% as of the most recent valuation date.
Appears in 1 contract
Sources: Credit Agreement (Science Applications International Corp)
Representations and Warranties of the Borrower. The To induce the Banks and the Agent to execute and deliver this Amendment (which representations and warranties shall survive the execution and delivery of this Amendment), the Borrower represents and warrants as followsto the Agent and the Banks that:
(a) Each of the Borrower this Amendment has been duly authorized, executed and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, Amendment constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectits terms, subject to limitations as to the enforcement of remediesenforceability which might result from bankruptcy, to applicable bankruptcyinsolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally;
(b) the Credit Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject to limitations as to enforceability which might result from bankruptcy, insolvency, reorganization, moratorium and or similar laws affecting or equitable principles relating to or limiting creditors’ ' rights generally;
(c) the execution, delivery and performance by the Borrower of the Amendment (i) have been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) do not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which it is a party or by which any of its properties or assets are or may be bound, or (B) result in a breach of or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 4(c);
(d) as of the date hereof, no unwaived Default or Event of Default has occurred which is continuing; and
(e) all the representations and warranties contained in Article IV of the Credit Agreement are true and correct in all material respects with the same force and effect as if made by the Borrower on and as of the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Norstan Inc)
Representations and Warranties of the Borrower. The To induce the Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Agent and the Lenders (which representations and warranties shall be made on and as followsof the Effective Date) that after giving effect to the amendments set forth herein:
(a) Each of the 3.1. The Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority and the legal right to executeexecute and deliver this Amendment, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) perform the transactions contemplated hereby. The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby Amendment, (a) are within the Borrower’s corporate powers, power; (b) have been duly authorized by all necessary corporate action and, if required, stockholder or other action, and ; (c) do not (i) contravene the charter or other constitutive documents or by-laws of cause the Borrower or any Subsidiary other Credit Party to be in default under (i) any provision of the Borrower’s or such Credit Party’s articles or certificate of incorporation or bylaws, (ii) violate any law contractual restriction contained in any indenture, loan or order of any Governmental Authority or any provision of any indenture credit agreement, lease, mortgage, security agreement, bond, note or other material agreement or instrument to which binding on or affecting the Borrower or any Subsidiary of the Borrower is a party such Credit Party or by which any of them its property, or any of their property is or may be bound or affected, (iii) conflict withany law, result in a breach of rule, regulation, order, license requirement, writ, judgment, award, injunction, or constitute decree applicable to, binding on or affecting the Borrower or such Credit Party or its property; (alone or with notice or lapse of time or bothd) a default under any such indenture, agreement or other instrument or (iv) will not result in the creation or imposition of any Lien upon or with respect to any of the property or assets now owned or hereafter acquired by of the Borrower or such Credit Party or any Subsidiary thereof other than those in favor of the Borrower.
Agent or any Lender, or as permitted pursuant to the Loan Documents; and (ce) No authorization, do not require the consent or approval or other action by, and no notice to or filing with, of any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itother Person, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that other than those which have been duly obtained, made or obtained complied with and which are in full force and effect.
(d) 3.2. This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isEach of this Amendment, and any Notes when delivered hereunder will be, the Loan Documents (as amended or modified hereby) to which each Credit Party is a party is the legal, valid and binding obligation of the Borrower such Credit Party, enforceable against the Borrower such Credit Party in accordance with their respective terms (its terms, subject, as to the enforcement of remediesenforceability, to (A) any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or other similar laws now or hereafter in effect relating to or affecting the enforceability of creditors’ rights generally)generally and (B) general equitable principles, whether applied in a proceeding at law or in equity, and is in full force and effect.
3.3. The representations and warranties of each Credit Party contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are true and correct in all material respects on and as of the date hereof as though made on and as of the date hereof.
3.4. No Default or Event of Default has occurred and is continuing or could reasonably be expected to occur after giving effect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (Synnex Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries Loan Party (i) in the case of Maison de Banian, LLC, is a company duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its organizationformation, except, (ii) in the case of any such SubsidiaryMaison de Banian, where LLC is duly qualified and in good standing as a foreign company in each other jurisdiction in which it owns or leases property or in which the failure conduct of its business requires it to so to qualify would not result in a Material Adverse Effect, or be licensed and (iiiii) has the all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its property and assets properties and to carry on its business as now conducted and as proposed to be conducted. All of the outstanding equity interests in Digital Media have been validly issued, exceptare fully paid and non-assessable, in and that the case equity interests of any such Subsidiary, where Digital Media owned by the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is requiredBorrower are free and clear of all Liens, except where the failure so to qualify would not result those created in a Material Adverse Effect and (iv) in the case favor of the BorrowerAdministrative Agent, has for the corporate power and authority ratable benefit of the Lenders, to execute, deliver and perform its obligations provide security under this Agreement and any Notes and each other agreement or instrument contemplated thereby the Collateral Documents to which it is or is to be a party and to borrow under this Agreementsecure the Loans.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes each Loan Document to which it is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby, are within the Borrowersuch Loan Party’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action(to the extent necessary), and do not (i) contravene the charter or other constitutive such Loan Party’s organizational documents or by-laws of the Borrower or any Subsidiary of the Borrower(if such Loan Party is an entity), (ii) violate any law law, rule, regulation, order, writ, judgment, injunction, decree, determination or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under or require any such payment to be made under, any contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or any of their properties or (iv) except for the Liens created under the Loan Documents in favor of the Administrative Agent and the Lenders, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerproperties of any Loan Party. No Loan Party 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 have a Material Adverse Effect.
(c) No authorization, 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 (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement any Loan Document to which it is or any Notes is to be delivered by ita party, or for the consummation of the transactions transaction contemplated hereby and therebyby this Agreement, (ii) the grant 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 Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for such the authorizations, approvals, actions, notices or and filings that listed on Schedule 4.01(c) hereto, all of which have been duly obtained, taken, given or made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have been, duly executed and delivered by the Borrowereach Loan Party party thereto. This Agreement is, and any Notes each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party party thereto, enforceable against the Borrower such Loan Party in accordance with their respective terms (subjectits terms, as except to the enforcement extent such enforceability may be limited by applicable bankruptcy and/or insolvency laws and/or the rights of remediescreditors generally.
(e) Other than the litigation between Borrower and ▇▇▇▇ ▇▇▇▇▇ and Borrower and ▇▇▇▇ ▇▇▇▇▇, there is no action, suit, investigation, litigation or proceeding affecting any Loan Party, including any Environmental Action, pending or threatened before any court, governmental agency or arbitrator that (i) could have a Material Adverse Effect or (ii) purports to applicable bankruptcyaffect the legality, reorganizationvalidity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby.
(f) No information, insolvencyexhibit or report furnished by or on behalf of any Loan Party to any Lender in connection with the negotiation, moratorium execution and similar laws affecting creditors’ rights generally)delivery of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading.
(g) Neither the Borrower nor any Guarantor is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could have a Material Adverse Effect.
Appears in 1 contract
Sources: Loan Agreement (Textor John C)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the The Borrower and each of its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) organization and has the all requisite organizational power and authority to own its property and assets and properties, to carry on conduct its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect being conducted and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby Loan Document to which it is or is to be a party party, except for any failures to be so organized, existing, qualified to do business or in good standing or to have such power and to borrow under this Agreementauthority as would not, individually or in the aggregate, have a Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it each Loan Document and the consummation of the transactions contemplated hereby (including, without limitation, each Borrowing hereunder and the use of the proceeds thereof) and the transactions contemplated thereby (i) are within the Borrower’s 's corporate powerspower, (ii) have been duly authorized by all necessary corporate action and, if required, stockholder action, and (iii) do not contravene (ix) contravene the charter or other constitutive documents Borrower's certificate of incorporation or by-laws of laws, (y) any law, rule, regulation, order, writ, injunction or decree, or (z) any contractual restriction under any material agreements binding on or affecting the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision other contractual restriction the contravention of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is would have a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the BorrowerMaterial Adverse Effect.
(c) No authorization, approval approval, consent, license or other action by, and no notice to or filing with, any Governmental Authority governmental authority, regulatory body or other Person is required for the due execution, delivery and performance by the Borrower of this Agreement each Loan Document to which it is or any Notes is to be delivered by ita party, or for the consummation of the transactions contemplated hereby (including, without limitation, each Borrowing hereunder and the use of the proceeds thereof) and the transactions contemplated thereby, except for such (i) consents, authorizations, approvals, actions, filings and notices or filings that which have been obtained or made or obtained and are in full force and effect, (ii) approvals that would be required under agreements that are not material agreements and (iii) as otherwise permitted by the Loan Documents.
(d) This Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, Borrower and any Notes when delivered hereunder will be, the constitute legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectterms, except as to the enforcement of remedies, to such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or similar laws law affecting creditors’ ' rights generally).
Appears in 1 contract
Sources: Revolving Bridge Facility Credit Agreement (Halliburton Co)
Representations and Warranties of the Borrower. The In order to induce the Lenders to make the Term Credit Advances hereunder, the Borrower represents makes the following representations and warrants as followswarranties to the Lenders:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreementincorporation.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any the Notes to be delivered executed by it and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not contravene (i) contravene the such Loan Party's charter or other constitutive documents or by-laws (or other equivalent organizational documents) or (ii) any law or any material contractual restriction binding on or affecting such Loan Party or, to the knowledge of such Loan Party's chief executive officer, chief financial officer, treasurer or controller or any vice president, any other contract the Borrower breach of which would limit the ability of any Loan Party to perform its obligations under this Agreement or the Notes. No Loan Party nor any Subsidiary of the Borrower, (ii) violate any law or order a Loan Party is in violation of any Governmental Authority law, rule, regulation, order, writ, judgment, injunction, decree, determination or any provision award applicable to it, or in breach of any indenture indenture, agreement, lease or other material agreement instrument, the violation or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) which is reasonably likely to have a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the BorrowerMaterial Adverse Effect.
(c) No authorization, 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 any Loan Party of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectNotes.
(d) This Agreement has been, and any each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement has been duly executed and delivered by the Guarantor. Assuming that this Agreement has been duly executed by the Administrative Agent and each of the Lenders, this Agreement is, and any each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms terms. Assuming that this Agreement has been duly executed by the Administrative Agent and each of the Lenders, this Agreement is the legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms.
(subjecte) The Consolidated balance sheet of the Borrower (or its predecessor entities) and its Subsidiaries as at December 31, 2001, and the related Consolidated statements of income and cash flows of the Borrower (or its predecessor entities) and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LP, independent public accountants, copies of which have been furnished to each Lender, fairly and accurately represent the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) There is no pending or (to the knowledge of any Loan Party) threatened action or proceeding, including, without limitation, any Environmental Action, affecting any Loan Party or any of its Subsidiaries before any court, governmental agency or arbitrator that is initiated by any Person other than a Lender in its capacity as a Lender that purports to affect the legality, validity or enforceability of this Agreement or any Note.
(g) Neither the Borrower nor any of its Subsidiaries is an Investment Company, as such term is defined in the Investment Company Act of 1940, as amended.
(h) No Loan Party is 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.
(i) As of the date hereof, the Borrower has no direct or indirect Significant Subsidiaries, except as set forth in Schedule 4.01(i).
(j) The Borrower and the Guarantor are Solvent.
(k) Each Loan Party and each of its respective Subsidiaries have filed all federal, state, commonwealth and local tax returns required to be filed and have paid all taxes shown thereon to be due, including interest and penalties, or have provided adequate reserves therefor; no unpaid or uncontested assessments have been made against any Loan Party or any Subsidiary of any Loan Party by any taxing authority, nor has any unpaid or uncontested penalty or deficiency been assessed by any such authority, and all contested assessments have been disclosed to the enforcement Administrative Agent and adequate reserves have been made therefor. Such tax returns properly reflect the income and taxes of remedieseach respective Loan Party and its Subsidiaries for the periods covered thereby, subject only to reasonable adjustments required by the corresponding taxing authorities upon audit or other adjustments not reasonably likely to have a Material Adverse Effect.
(l) No Loan Party is subject to any labor dispute with its employees, which is reasonably likely to have a Material Adverse Effect.
(m) No written information, exhibit or report furnished by any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of this Agreement contained any material misstatement of fact or omitted to state a material fact necessary to make the statements contained therein not misleading.
(n) The operations and properties of each Loan Party comply in all material respects with all applicable bankruptcyEnvironmental Laws; all necessary Environmental Permits have been obtained and are in effect for the operations and properties of each Loan Party, reorganizationand each Loan Party is in compliance in all material respects with all such Environmental Permits; none of the operations or properties of any Loan Party is subject to any Environmental Action alleging the violation of any Environmental Law; none of the operations of any Loan Party are the subject of a federal, insolvencystate, moratorium and similar laws affecting creditors’ rights generally)commonwealth or local investigation evaluating whether any remedial action is needed to respond to a release of any hazardous or toxic waste, substance or constituent, or any other substance into the environment, which Environmental Action or remedial action is reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Sources: Term Credit Agreement (Telecomunicaciones De Puerto Rico Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Bank as follows:
(a) Each of the The Borrower is a duly organized and its Subsidiaries (i) is duly organized, validly existing and in good standing partnership under the laws of the jurisdiction State of its organizationNew York, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) and has the requisite power and authority to own its property and assets properties and to carry on its business as it is now conducted, except, being conducted and is registered at the Mercantile Registry of the Commonwealth of Puerto Rico and Borrower is not engaged in trade or business in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreementcontinental United States for U.S. tax purposes.
(b) The execution, delivery and performance by the Borrower of this Agreement Agreemeent and any Notes each Loan Document to be delivered by which it and the consummation of the transactions contemplated thereby is a party are within the Borrower’s corporate its powers, have been duly authorized by all necessary corporate action and, if required, stockholder partnership action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary provision of the Borrower's partnership agreement, (ii) violate or any law or order of any Governmental Authority contractual restriction binding on or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borroweraffecting it.
(c) No authorization, authorization or approval or other action by, and no notice to or filing filng with, any Governmental Authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes and each Loan Document to be delivered by it, or for the consummation of the transactions contemplated hereby which it is a party other than such authorizations and thereby, except for such authorizations, approvals, actions, notices or filings that approvals as have already been made or obtained and are in full force and effect.
(d) This Agreement has beenAgreement, the Notes, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered each of the Loan Documents signed by the Borrower. This Agreement is, and any Notes Borrower when delivered hereunder will be, the legal, duly executed and delivered and constitute valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance accordacne with their respective terms terms.
(subjecte) The Borrower is not in default of any provision of its partnership agreement; nor is it in default in the payment or performance or observance of any contract, agreement or other instrument to which it is a party or by which it or any of its properties or assets may be bound, which individually, or together with all other such defaults, could, now or in the future, have a material adverse affect on the business, operations, properties, assets, prospects or condition (financial or otherwise) of the Borrower or materially impair the Borrower's ability to pay the Notes or perform or observe the provisions of this Agreement or the Loan Documents.
(f) The Borrower is not in violation of any law, rule or regulation of any Governmental Authority, except where such violation cannot result in a materially adverse effect on the business, operations, proprties, assets, prospects or condition (financial or otherwise) of the Borrower, and to the best of the Borrower's knowledge after due inquiry, there is no threatened action or proceeding, affecting the Borrower before any court, governmental agency or arbitrator, which may materially adversely affect the business, operations, properties, assets, prospects or condition (financial or otherwise) of the Borrower.
(g) No proceeds of any borrowing will be used to acquire any security in any transaction which is subject ot the Securities Exchange Act of 1934.
(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), and no proceeds of any borrowiong 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) The Borrower is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(j) Borrower has good title to the enforcement Property and the Real Property Mortgage will, upon the subordination of remediesthe AFICA Mortgage, constitute a valid first lien and perfected priorty security interest on and in the Property.
(k) The proceeds of the Advances consisting of 936 Option Rate Advances shall be used by the Borrower only in "Eligible Activities" as said term is defined in Regulation 3582, as amended, promulgated by the Commissioner of Financial Institutions of Puerto Rico, and the proceeds of the borrowings consisting of other Advances are being used by the Borrower for the stated purposes of this loan.
(l) There has been no material adverse change in the business, operations, properties, prospects, assets or condition (financial or otherwise) of the Borrower since the date of the Borrower's Financial Statements.
(m) All Federal, Puerto Rico, and foreign tax returns reports and statements (including, without limitation, those relating to income and property taxes withholding, social security and unemployment taxes, sales and use taxes, "patentes" and franchise taxes) required to be filed by the Borrower have been properly filed with the appropriate Governmental Authorities in all jurisdictions in which such returns, reports and statements are required to be filed, which returns, reports and statements are complete and accurate and all taxes and other impositions due and payable have been timely paid prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for non-payment thereof except where contested in good faith and by appropriate proceedings. The Borrower has not filed with the appropriate Governmental Authority any agreement or other document extending or having the effect of extending the period for filing returns or the period for assessment or collection of any Federal, Puerto Rico, or foreign taxes or other impositions. All tax deficiencies asserted or assessments made as a result of any examinations conducted by any applicable Governmental Authority relating to the Borrower have been fully paid. Proper and accurate amounts have been withheld by the Borrower from its employees for all periods to fully comply with the tax, social security and unemployment withholding provisions of applicable Federal, Puerto Rico and foreign law.
(n) The Borrower holds all Franchises required for its operations and said Franchises are in full force and effect and no other approval, application, filing, registration, consent or other action of any local, state or federal authority is required to enable the Borrower to exploint any such Franchise. The Borrower has not received any notice from the granting body or any other Governmental Authority with respect to any breach of any covenant under, or any default with respect to, any such Franchises. Before and upon giving effect to this Agreement and the Loan Documents no default shall have occurred and be continuing under any such Franchises. All material consents and approvals of, filings and registration with, and all other actions in respect of, all governmental agencies, authorities or instrumentalities required to maintain any Franchises in full force and effect prior to the scheduled date of expiration thereof have been, or, prior to the time when required, will have been, obtained, given, filed or taken and are or will be in full force and effect.
(o) All policies of insurance of any kind or nature owned by or issued to the Borrower, including, without limitation, policies of life, fire, theft, product liability, public liability, property damage, other casualty, employee fidelity, worker's compensation, employee health and welfare, title, property and liability insurance are of a nature and provide such coverage as is sufficient and as is customarily carried by companies of the size and character of the Borrower. The Borrower has not been refused insurance for which it applied or had any policy of insurance terminated (other than at its request).
(p) There are no strikes or other material labor disputes or grievances pending against the Borrower. To the knowledge of the Borrower, there are no such strikes and no such disputes threatened which could materially and adversely affect the business, properties, prospects, assets, operations or condition (financial or otherwise) of the Borrower. There are no unfair labor practice charges or grievances pending or in process or, to applicable bankruptcythe knowledge of the Borrower, reorganizationthreatened by or on behalf of any employee or group of employees of the Borrower. There are no written complaints received by the Borrower, insolvencyor, moratorium to the knowledge of the Borrower, threatened, or with respect to unresolved complaints, on file, with any Federal, state or local govermental agency alleging employment discrimination by the Borrower. All payments due from the Borrower pursuant to the provisions of any collective bargaining agreement have been paid or accrued as a liability on the books of the Borrower.
(q) The Borrower's Financial Statements as of the dates and similar for the periods therein indicated, present fairly the financial position, results of operations and changes in cash flows of the Borrower and have been prepared in accordance with the accepted accounting principles consistently applied.
(r) The Borrower has no liability (whehter absolute or contingent and whether due or to become due) or loss contingency (as that term is defined in the Statement of Financial Standards No. 5) which is required to be disclosed in the Borrower Financial Statements which in accordance with generally accepted accounting principles is not disclosed on the Borrower's Financial Statements.
(s) The Borrower is in compliance in all materials respects with labor laws affecting creditors’ rights generally).and
Appears in 1 contract
Sources: Credit Agreement (WMS Hotel Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the Borrower State of Nevada and is duly qualified to do business and is in good standing as a foreign corporation under the laws of each state in which the ownership of its Subsidiaries (i) properties or the conduct of its business makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect, and each Material Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is incorporated or is to be a party and to borrow under this Agreementotherwise organized.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it each Loan Document, and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrower’s corporate powers, powers and have been duly authorized by all necessary corporate action and, if required, stockholder action, . Each Loan Document has been duly executed and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or delivered by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itLoan Document, or for the consummation of the transactions contemplated hereby and thereby, except for other than such authorizations, approvals, actions, notices or filings Governmental Approvals that have been made or duly obtained and are in full force and effect, which as of the date hereof are as follows: Order issued January 25, 2022 by the PUCN in Docket No. 21-10027.
(d) This Agreement has beenThe execution, delivery and performance by Borrower of the Loan Documents will not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower or any Notes 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 delivered by it when delivered hereunder will expected to have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, a Material Adverse Effect.
(e) Each Loan Document is the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms (subjectits terms, except as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium limited by bankruptcy and similar laws affecting the enforcement of creditors’ rights generallygenerally and by the application of general equitable principles.
(f) 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) ThereExcept as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 or in any Current Report on Form 8-K or Quarterly Report on Form 10-Q filed subsequent thereto but prior to the Second Amendment Effective Date, 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 sheet of the Borrower and its Consolidated Subsidiaries as at December 31, 2021, and the related consolidated statements of income, cash flows and stockholders’ equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Administrative Agent and each Lender, present fairly in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such date, and the consolidated results of their operations and cash flows 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 (except as may be disclosed therein).
(i) SinceExcept as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 or in any Current Report on Form 8-K or Quarterly Report on Form 10-Q filed subsequent thereto but prior to the Second Amendment Effective Date, since December 31, 2021, no event has occurred that could reasonably be expected to have a Material Adverse Effect.
(j) The Borrower 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 on any assessments made against it or any of its property; other than (i) with respect to taxes the amount or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or the applicable Material Subsidiary, as the case may be, or (ii) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
(k) 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 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) ThereExcept as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023 or in any Current Report on Form 8-K or Quarterly Report on Form 10-Q filed subsequent thereto but prior to the Second Amendment Effective Date, (i) 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 and (ii) 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.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement Supplement and any Notes to be delivered by it each Loan Party of the Consent, and the consummation of each aspect of the transactions contemplated thereby hereby, are within the Borrowersuch Loan Party’s corporate constitutive powers, have been duly authorized by all necessary corporate action and, if required, stockholder constitutive action, and do not (i) contravene the charter or other such Loan Party’s constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerdocuments, (ii) violate any law or order (including, without limitation, the Securities Exchange Act of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary 1934), rule, regulation (including, without limitation, Regulation X of the Borrower is a party Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or by which any of them or any of their property is or may be bound or affectedaward applicable to such Loan Party, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, or (iv) except for the Liens created or to be created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of its Subsidiaries except, in each case referred to in clauses (ii) and (iii), to the Borrowerextent that such violation conflict, breach or default would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(cb) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority governmental authority or regulatory body or any third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower of this Agreement Supplement or by any Notes to be delivered by itLoan Party of the Consent, or for the consummation of each aspect of the transactions contemplated hereby and therebyhereby, (ii) the grant 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 (except to the extent such perfection or maintenance is not required under the Credit Agreement, this Supplement or the Collateral Documents) or (iv) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except in each case, for such (x) those authorizations, approvals, actions, notices or and filings that which have been duly obtained, taken, given, waived or made or obtained and are in full force and effect, (y) those not required to be obtained on or prior to the date hereof pursuant to the Credit Agreement, this Supplement or the Collateral Documents and (z) those the failure to obtain which would not reasonably be expected to have a Material Adverse Effect.
(dc) This Agreement has been, Supplement and any Notes to be delivered by it when delivered hereunder will the Consent have been, been duly executed and delivered by the Borrowereach Loan Party party thereto. This Agreement is, Supplement and any Notes when delivered hereunder will be, the Consent each is the legal, valid and binding obligation of the Borrower each Loan Party party thereto, enforceable against the Borrower such Loan Party in accordance with their respective terms (subjectits terms, except as to such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of remediescreditors rights generally or by equitable principles relating to enforceability and the effect of foreign laws, rules and regulations as they relate to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)Pledged Equity in Foreign Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Chemtura CORP)
Representations and Warranties of the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for the undertakings on the part of the Issuer herein contained:
(ai) Each The Borrower is a corporation duly incorporated under the laws of the Borrower State of Texas and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction State of Texas, has power to enter into this Agreement and to perform and observe the agreements and covenants on its organizationpart contained herein, except, in and by proper corporate action has duly authorized the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effectexecution and delivery hereof, (ii) has the requisite power and authority Borrower is duly qualified to own its hold property and assets and to carry on its transact business as now conducted, except, a foreign corporation and is in good standing under the case laws of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse EffectState of Arizona, (iii) is qualified all of the proceeds of the Bonds will be used to do business in every jurisdiction where such qualification is requiredredeem and refund the Prior Bonds, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) prior to the issuance of the Bonds, the Federal Energy Regulatory Commission will have approved all matters relating to the Borrower's participation in the case transactions contemplated by this Agreement which require said approval, and no other consent, approval, authorization or other order of any regulatory body or administrative agency or other governmental body is legally required for the Borrower's participation therein except such as have been or will have been obtained prior to the issuance of the BorrowerBonds or such, has if any, as may be required under state securities or Blue Sky laws, and (v) the corporate power execution and authority to execute, deliver and perform its obligations under delivery of this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement do not, and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within hereby and fulfillment of the Borrower’s corporate powersterms hereof will not, have been duly authorized by all necessary corporate action andresult in a breach of any of the terms or provisions of, if requiredor constitute a default under, stockholder actionany indenture, and do not (i) contravene the charter mortgage, deed of trust or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower is a party, or the Restated Articles of Incorporation or Bylaws of the Borrower, or any Subsidiary of order, rule or regulation applicable to the Borrower is a party of any court or by which of any of them Federal or any of their property is state regulatory body or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement administrative agency or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by governmental body having jurisdiction over the Borrower or over any Subsidiary of its properties, or any statute of any jurisdiction applicable to the Borrower other than breaches or defaults that individually or in the aggregate are not expected to have a material adverse effect on the Borrower.
(b) The Facilities meet applicable Federal, state and local requirements for the control of pollution now in effect and are used for the reduction, abatement and prevention of pollution;
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for The Borrower does not presently expect that the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation description of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are Facilities contained in full force and effect.Exhibit A hereto will be revised;
(d) This Agreement To the extent necessary to preserve the security for the Bonds, the validity of the Bonds under the Act and the Tax-Exempt status of interest on the Bonds, all material certificates, approvals, permits and authorizations of agencies of applicable local governmental agencies, the State and the federal government have been obtained with respect to the construction of the Project and, pursuant to such certificates, approvals, permits and authorizations, the Project has been, been constructed and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by is in operation.
(e) To the best knowledge of the Borrower. This Agreement is, and any Notes when delivered hereunder will beno member, the legal, valid and binding obligation officer or other official of the Borrower enforceable against Issuer has any interest whatsoever in the Borrower or in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)transactions contemplated by this Agreement.
Appears in 1 contract
Representations and Warranties of the Borrower. The Each of Holdings and the Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower it of this Agreement Amendment and any Notes to be delivered Waiver, the execution, delivery and performance of the Consent by it the Loan Parties signatory thereto and the consummation performance of each Loan Party of each Loan Document (as amended by the transactions contemplated thereby Amendment and Waiver) to which such Person is a party, are within the Borrowersuch Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate action and, if required, stockholder or other organizational action, and do not and will not (i) contravene the charter or other constitutive documents or by-laws terms of the Borrower or any Subsidiary of the Borrower, such Person’s Organization Documents; (ii) violate conflict with or result in any law material breach or order contravention of, or the creation of any Lien under, or require any payment to be made under (A) any material Contractual Obligation to which such Person is a party or affecting the properties of such Person or any of its Subsidiaries other than as contemplated hereby or (B) any material order, injunction, writ or decree of any Governmental Authority or any provision of any indenture or other material agreement or instrument arbitral award to which the Borrower such Person or any Subsidiary of the Borrower is a party or by which any of them or any of their its property is subject; or may be bound or affected, (iii) conflict with, result violate in a breach of any material respect any Law applicable to such Loan Party or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerits properties.
(cb) No authorizationThis Amendment and Waiver and the Consent attached hereto, approval or other action bywhen delivered hereunder, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that will have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrowereach Loan Party that is party thereto. This Agreement isAmendment and Waiver and the Consent attached hereto, and any Notes when delivered hereunder so delivered, will be, the constitute a legal, valid and binding obligation of the Borrower such Loan Party, enforceable against the Borrower each Loan Party that is party thereto in accordance with their respective terms (subjectits terms, as to the enforcement of remedies, subject to applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or other similar laws affecting creditors’ the rights of creditors generally), and subject to equitable principles of general application.
(c) As of the Third Amendment Effective Date, after giving effect to this Amendment and Waiver, no Default or Event of Default has occurred or is in existence.
Appears in 1 contract
Sources: Credit Agreement (Solo Cup CO)
Representations and Warranties of the Borrower. The Borrower As of the Effective Date and the date of each Funding, the Trust Company in its individual capacity and as the Owner Trustee, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the following paragraphs (g), (j) and (k) are made solely in its capacity as the Owner Trustee:
(a) Each of the Borrower It is a national banking association and its Subsidiaries (i) is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) America and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Trust Agreement and any Notes (assuming due authorization, execution and delivery of the Trust Agreement by the Certificateholders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other agreement or instrument contemplated thereby Related Documents to which it the Trust Company or the Owner Trustee, as the case may be, is or is to will be a party and each other agreement, instrument and document to borrow under this Agreement.be executed and delivered by it in connection with or as contemplated by each such Related Document to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Related Document to which it is or will be a party, either in its individual capacity or (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of this Agreement Certificateholders) as the Owner Trustee, as the case may be, has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law law, rule, regulation, license, judgment, order or order decree of any Governmental Authority government, governmental body or court and relating to its banking or trust powers, (iii) does or will contravene or result in any provision breach of or constitute any default under, or result in the creation of any indenture Lien upon any of its property under, (A) its charter or by-laws, or (B) any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict withwould materially and adversely affect its ability, result in its individual capacity or as the Owner Trustee, to perform its obligations under the Related Documents to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon Governmental Action by any government or with respect to any property governmental or assets now owned public body or hereafter acquired by the Borrower authority regulating its banking or any Subsidiary of the Borrower.trust powers;
(c) No authorizationThe Trust Agreement and, approval or other action by, and no notice to or filing with, any Governmental Authority assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower Certificateholders, each other Related Document to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before the Effective Date will be, duly executed and delivered by the Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Related Document to which the Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower Trust Company or the Owner Trustee, as the case may be, in accordance with their respective the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party, either in its individual capacity or as the Owner Trustee, before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the Related Documents to which it is a party or would question the validity or enforceability of any of the Related Documents to which it is or will become a party;
(e) It has not assigned or transferred any of its right, title or interest in or under the Master Lease, the Construction Agency Agreement or its interest in any Property or any portion thereof, except in accordance with the Related Documents;
(f) No Potential Default of Event of Default under the Related Documents attributable to it has occurred and is continuing;
(g) Neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the Trust Estate or the Certificates, Tranche A Notes or Tranche B Notes, or in any similar security relating to the Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Tranche A Notes and Tranche B Notes, the Agent, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Related Document under the Trust Indenture Act of 1939, as amended;
(h) The Owner Trustee's principal place of business, chief executive office and office where the documents, accounts and records relating to applicable bankruptcythe transactions contemplated by this Agreement and each other Related Document are kept are located at 79 S▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, reorganization▇▇▇▇ ▇▇▇▇ ▇▇▇▇, insolvency▇▇▇▇ ▇▇▇▇▇;
(i) The Owner Trustee is not engaged principally in, moratorium and similar laws affecting creditors’ rights generallydoes not have as one (1) of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of the Loans or the Certificateholder Advances will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulations T, U, or X of the Board of Governors of the Federal Reserve System of the United States;
(j) The Owner Trustee is not an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act;
(k) Each Property is free and clear of all Lessor Liens attributable to the Trust Company; and
(l) The Owner Trustee is a party to no documents, instruments or agreements other than the Related Documents to which it is a party and any other documents delivered by the Owner Trustee in connection with the Related Documents.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower As of the date hereof, the Borrower, for and on behalf of the Loan Parties, represents and warrants as followsto the Administrative Agent and each Lender that, in each case, immediately after giving effect to this Amendment:
(a) Each of the Borrower and its Subsidiaries (i) is each of the other Loan Parties are duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationorganization and the execution, exceptdelivery and performance by the Borrower and each of the other Loan Parties of this Amendment have been duly authorized by all necessary corporate, in limited liability company or partnership action and do not and will not:
(i) violate any applicable law or regulation or the case limited liability company agreements, charter, by-laws or other Organizational Documents of any such SubsidiaryLoan Party or any order of any Governmental Authority, where the failure so which violation could reasonably be expected to qualify would not result in have a Material Adverse Effect, ;
(ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not violate or result in a default under any indenture or other agreement regarding Material Adverse EffectIndebtedness binding upon any Loan Party or any of their respective Properties, or give rise to a right thereunder to require any payment to be made by any Loan Party; or
(iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect the creation or imposition of any Lien on any Property of any Loan Party;
(b) the Borrower and (iv) in the case each of the Borrower, has other Loan Parties have the corporate power and authority to execute, deliver and perform its obligations under this Amendment, the Credit Agreement and any Notes and each the other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.Loan Documents;
(bc) The execution, delivery the representations and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws warranties of the Borrower or any Subsidiary of and the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result Loan Parties set forth in the creation or imposition of any Lien upon or Credit Agreement and the other Loan Documents are true and correct in all material respects (or, with respect to any property representation or assets now owned warranty qualified by materiality or hereafter acquired by the Borrower a material adverse change or any Subsidiary material adverse effect standard, in all respects) on and as of the Borrower.
Second Amendment Effective Date (c) No authorization, approval or other action by, although any representations and no notice warranties which expressly relate to or filing with, any Governmental Authority is an earlier date shall be required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes only to be delivered true and correct in all material respects (or, with respect to any representation or warranty qualified by itmateriality or a material adverse change or material adverse effect standard, or for the consummation in all respects) as of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generallyspecified earlier date).
Appears in 1 contract
Sources: Credit Agreement (BKV Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is duly organized, validly existing and and, to the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization, except, in .
(b) Subject to the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case entry of the BorrowerOrders and subject to the terms thereof, has the corporate power execution, delivery and authority to execute, deliver and perform its obligations under this Agreement and any Notes and performance by each other agreement or instrument contemplated thereby Loan Party of each Loan Document to which it is or is to be a party and to borrow under this Agreement.
(b) The executionparty, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrowersuch Loan Party’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the such Loan Party’s charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law or order law, rule, regulation (including, without limitation, Table of any Governmental Authority or any provision of any indenture or other material agreement or instrument Contents with respect to which the Borrower or any Subsidiary Borrower, Regulation X of the Borrower is a party Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under or require any payment to be made under, any material contractual restriction (except in respect of the Existing Second Lien Debt) or, to such indentureLoan Party’s knowledge, agreement any other contractual restriction, binding on or other instrument affecting such Loan Party or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of its Subsidiaries (except pursuant to the BorrowerExisting Second Lien Debt or the Indenture).
(c) No authorizationSubject to the entry of the Orders, 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 (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, (ii) the Borrower grant 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 priority thereof provided for in this Agreement Agreement, the Orders and the Intercreditor Agreement) or (iv) except for any notices that may be required pursuant to Section 6.01 or Section 6.02 or pursuant to the Intercreditor Agreement, the exercise by the Agent, the Collateral Agent or any Notes to be delivered by it, Lender of its rights under the Loan Documents or for the consummation remedies in respect of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectCollateral pursuant to the Collateral Documents.
(d) This Subject to the entry of the Orders, this Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. Subject to the Borrower. This entry of the Orders, this Agreement is, and any Notes each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party party thereto enforceable against the Borrower such Loan Party in accordance with their respective terms terms.
(subjecte) The audited Consolidated statement of financial position of the Borrower and its Consolidated Subsidiaries as at December 31, 2011, and the related audited Consolidated statement of earnings and Consolidated statement of 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, copies of which have been furnished to each Lender, fairly present, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the Consolidated statement of earnings and Consolidated statement of cash flows of the Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. The unaudited Consolidated statement of financial position of the Borrower and its Consolidated Subsidiaries as at September 30, 2012, and the related unaudited Consolidated statement of earnings and Consolidated statement of cash flows of the Borrower and its Consolidated Subsidiaries for the nine month period then ended, fairly present, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the Consolidated statement of earnings and Consolidated statement of cash flows of the Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied, subject to normal year-end adjustments and other items, such as footnotes, omitted in interim statements. Since September 30, 2012, there has been no Material Adverse Effect.
(f) There is no pending or, to the enforcement knowledge of remediesthe Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) is reasonably likely to applicable bankruptcyhave a Material Adverse Effect, reorganizationother than the Cases and as disclosed on Schedule 4.01(f) or publicly filed or furnished prior to the Effective Date on Form 8-K or any periodic report required or permitted to be filed or furnished under the Exchange Act with the Securities Exchange Commission or (ii) purports to affect the legality, insolvency, moratorium and similar laws affecting creditors’ rights generally)validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants to each of the other parties hereto that as follows:of each Closing Date (except to the extent any such representation or warranty relates to an earlier date):
(a) Each of the Borrower It is a corporation duly organized and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationNorth Carolina, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every each jurisdiction where such qualification is required, except where necessary to permit the failure so Borrower to qualify would not result in a Material Adverse Effect own and (iv) in lease the case of the Borrower, has the corporate power and authority to execute, deliver Properties and perform its obligations under this Agreement each of the Operative Agreements and any Notes has the power and authority to enter into and perform its obligations under each other agreement or instrument contemplated thereby of the Operative Agreements to which it is or is to will be a party and each other agreement, instrument and document to borrow under this Agreement.be executed and delivered by it on or before such Closing Date in connection with or as contemplated by each such Operative Agreement to which the Borrower is or will be a party, and is a multi-purpose, Wholly-Owned Entity of Wachovia Corporation;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party has been duly authorized by all necessary action on its part and neither the Borrower of this Agreement execution and any Notes to be delivered by it and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any of its indebtedness or obligations or any Subsidiary of the Borrowerother consent or approval that has not previously been obtained, (ii) violate does or will contravene any law Legal Requirement, (iii) does or order will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict with, result in could reasonably be expected to materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a breach party or would question the validity or enforceability of any of the Operative Agreements to which it is or constitute (alone or with notice or lapse of time or both) will become a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon or with respect to Governmental Action by any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.Governmental Authority;
(c) No authorization, approval or other action by, and no notice Each Operative Agreement to or filing with, any Governmental Authority is required for the due execution, delivery and performance by which the Borrower of this Agreement is or any Notes to will be delivered by ita party have been, or for the consummation of the transactions contemplated hereby and thereby, except for on or before such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder Closing Date will have beenbe, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder each Operative Agreement to which the Borrower is a party constitutes, or upon execution and delivery will beconstitute, the a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party;
(e) The Borrower has not assigned or transferred any of its right, title or interest in or under the Lease or its interest in any Property or any portion thereof, except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of the Advances shall not be applied by the Borrower for any purpose other than the purchase and/or lease of the Properties or to pay Transaction Expenses, payable by the Lessor under Section 7.1 of this Agreement;
(h) Neither the Borrower nor any Person authorized by the Borrower to act on its behalf has offered or sold any interest in the Borrower's Interest or the Notes, or in any similar security relating to the Properties, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent and the Lenders and neither the Borrower nor any Person authorized by the Borrower to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Borrower's Interest or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The location of the Borrower for purposes of the UCC is North Carolina. The Borrower's principal place of business, chief executive office and office where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at One Wachovia Center, 301 South College Street, Charlotte, North Carolina 28288;
(▇) ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇y in, and does not have as one (1) of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U), and no part of the proceeds of the sale of the Notes or the Lessor Advance will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulations T, U, or X;
(k) The Borrower is not an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act;
(l) Each Property is free and clear of all Lessor Liens attributable to the Lessor, and the execution, delivery and performance by the Lessor of this Agreement or any other Operative Agreement to which Lessor is a party will not subject any of the Properties, or any portion thereof, to any Lessor Lien (other than those created by or pursuant to the Operative Agreements);
(m) The Borrower's true legal name as registered in the jurisdiction of its organization is "Wachovia Development Corporation" and its Federal Employer Identification Number is 56-1610288. During the five (5) year period immediately pri▇▇ ▇▇ ▇▇▇ Initial Closing Date, the true legal name of the Borrower has not been other than "Wachovia Development Corporation" or "First Union Development Corporation". The Borrower does not use, or transact and has not used, or transacted within the five (5) years immediately prior to the Initial Closing Date any business under, any trade name other than its current or prior legal name referenced in the preceding sentence;
(n) The Borrower has filed all tax returns and all other material reports that are required under applicable bankruptcyLaw to be filed by it and has paid all taxes or other charges of any Governmental Authority due pursuant to such returns or other reports, reorganizationexcept for any taxes or other charges that are being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been set aside on the books and records of the Borrower;
(o) The unaudited balance sheet of the Borrower as of March 31, insolvency2003, moratorium copies of which have been delivered to the Agent, and similar laws affecting creditors’ rights generallyto the Lessee, fairly present, in conformity with sound accounting principles, the financial condition of the Borrower on such date;
(p) Since March 31, 2003, there has been no event, act, condition or occurrence having a material adverse effect upon the financial condition, operations, performance or properties, in the aggregate, of the Borrower, or the ability of the Borrower to perform in any material respect its obligations under the Operative Agreements; and
(q) To the Borrower's knowledge, the facts disclosed in the applicable letter from the Borrower to the Lessee regarding certain matters of the Borrower (including Attachment C thereto, but excluding Attachments A and B thereto), substantially in the form of mutually agreed upon by the Borrower and the Lessee on or prior the Initial Closing Date, were (as of the date referenced therein) true, correct and complete in all material respects.
Appears in 1 contract
Sources: Participation Agreement (West Corp)
Representations and Warranties of the Borrower. The Borrower Effective as of the Initial Closing Date, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) Each of the Borrower It is a national banking association and its Subsidiaries (i) is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) America and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Trust Agreement and any Notes (assuming due authorization, execution and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other agreement or instrument contemplated thereby Operative Agreements to which it the Trust Company or the Owner Trustee, as the case may be, is or is to will be a party and each other agreement, instrument and document to borrow under this Agreement.be executed and delivered by it on or before such Closing Date in connection with or as contemplated by each such Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party, either in its individual capacity or (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of this Agreement Holders) as the Owner Trustee, as the case may be, has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law Legal Requirement relating to its banking or order trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict withwould materially and adversely affect its ability, result in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon Governmental Action by any Governmental Authority regulating its banking or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.trust powers;
(c) No authorizationThe Trust Agreement and, approval or other action by, and no notice to or filing with, any Governmental Authority assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower Holders, each other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by the Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower Trust Company or the Owner Trustee, as the case may be, in accordance with their respective the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party, either in its individual capacity or as the Owner Trustee, before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party;
(e) It has not assigned or transferred any of its right, title or interest in or under the Lease or the Agency Agreement except in accordance with the Operative Agreements;
(f) No Default of Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of the Loans and Holder Advances shall not be applied by the Owner Trustee for any purpose other than the payment of Transaction Expenses and the fees, expenses and other disbursements referenced in Sections 9.1(a) and (b) of this Agreement, the purchase and/or lease of the Properties, the acquisition, installation and testing of the Equipment, the construction of Improvements and the payment of interest on the Loans and the payment of the Holder Yield on the Holder Advances, in each case to the extent accrued under the Credit Agreement or Trust Agreement (as the case may be) during the period prior to the Rent Commencement Date with respect to a particular Property;
(h) Neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar security relating to a Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The Owner Trustee's chief place of business, chief executive office and office where the documents, accounts and records relating to applicable bankruptcythe transactions contemplated by this Agreement and each other Operative Agreement are kept are located at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, reorganization▇▇▇▇ ▇▇▇▇ ▇▇▇▇, insolvency▇▇▇▇ ▇▇▇▇▇;
(j) The Owner Trustee is not engaged principally in, moratorium and similar laws affecting creditors’ rights generallydoes not have as one (1) of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of the Loans or the Holder Advances will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulations G, T, U, or X of the Board of Governors of the Federal Reserve System of the United States; and
(k) The Owner Trustee is not an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act.
Appears in 1 contract
Sources: Participation Agreement (Performance Food Group Co)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, exceptas applicable and is duly qualified to do business in, and is in the case of any such Subsidiarygood standing in, all other jurisdictions where the nature of its business or the nature of property owned or used by it makes such qualification necessary, except where such failure so to qualify would not result in a Material Adverse Effect, Change. Each of the Borrower and its Subsidiaries has all requisite corporate (iior other applicable) has the requisite power powers and authority to own or lease and operate its property and assets properties and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect conducted and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is as proposed to be a party and to borrow under this Agreementconducted.
(b) The execution, delivery and performance by the Borrower and, where applicable, each Subsidiary of this Agreement and any Notes Agreement, each Loan Document to be delivered by which it and the consummation of the transactions contemplated thereby is a party are within the Borrower’s or Subsidiary’s corporate (or other applicable) powers, have been duly authorized by all necessary corporate action and, if required, stockholder (or other applicable) action, and do not contravene (i) contravene the charter Borrower’s or Subsidiary’s certificate of incorporation (or other constitutive documents applicable formation document or by-laws operating agreement), (ii) any law, rule or regulation applicable to the Borrower or such Subsidiary or (iii) any contractual or legal restriction binding on or affecting the Borrower or such Subsidiary, and will not result in or require the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower or its Subsidiaries, except as provided in this Agreement and any Subsidiary other the Loan Document.
(c) No Governmental Action is required for the execution or delivery by the Borrower or its Subsidiaries of this Agreement, any other Loan Document to which it is a party or for the performance by the Borrower or its Subsidiaries of its obligations under this Agreement, any other Loan Document to which it is a party other than those which have previously been duly obtained, are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture threatened appeal or other material agreement proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or instrument appeal with respect thereto have expired.
(d) This Agreement and each Loan Document to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower or Subsidiary party thereto, enforceable against the Borrower or applicable Subsidiary in accordance with their respective its terms (subject, as subject to the enforcement effect of remediesbankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium and other similar laws of general application affecting creditors’ rights and remedies of creditors generally.
(e) Except as disclosed in the Disclosure Documents, there is no pending or, to the Borrower’s knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that has a reasonable possibility of resulting in a Material Adverse Change.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2006, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, and the unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at September 30, 2007, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the six (6) months then ended, copies of which have been furnished to the Administrative Agent and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied, subject, solely in the case of unaudited consolidated balance sheets, to normal year end adjustments. Since December 31, 2006, there has been no Material Adverse Change, or material adverse change in the facts and information regarding such entities as represented to the Closing Date.
(g) The issuance of, and the existence of, the Letter of Credit and the use of the proceeds thereof will comply with all provisions of applicable law and regulation in all material respects.
(h) Neither the Borrower nor any Subsidiary of the Borrower is an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) Intentionally Deleted.
(j) Neither the Borrower nor its Subsidiaries is engaged in the business of extending credit for the purpose of 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 drawing on the Letter of Credit 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.
(k) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan which reasonably could be expected to result in a Material Adverse Change. Since the actuarial valuation date specified in the most recent Schedule B (Actuarial Information) to the annual report of Plans maintained by the Borrower (Form 5500 Series), if any, (i) there has been no Material Adverse Change in the funding status of the Plans referred to therein and (ii) no “prohibited transaction” has occurred with respect thereto. Neither the Borrower nor any of itsrespective ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan.
(l) Except as set forth in the Disclosure Documents, the Borrower and its Subsidiaries are in compliance in all material respects with all applicable Federal, state and local statutes, rules, regulations, orders and other provisions of law relating to Hazardous Materials, air emissions, water discharge, noise emission and liquid disposal, and other environmental, health and safety matters, other than those the non-compliance with which would not result in a Material Adverse Change (taking into consideration all fines, penalties and sanctions that may be imposed because of such non-compliance) or on the ability of the Borrower to perform its obligations under this Agreement or any other Loan Document to which the Borrower is a party. Except as set forth in the Disclosure Documents, neither the Borrower nor any of its respective Subsidiaries has received from any Governmental Authority any notice of any material violation of any such statute, rule, regulation, order or provision.
(m) The Borrower and its Subsidiaries have filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, except to the extent that the Borrower or any such Subsidiary is diligently contesting any such taxes in good faith and by appropriate proceedings, and for which adequate reserves for payment thereof have been established.
(n) No event has occurred or is continuing which constitutes a Default or an Event of Default, or which constitutes, or which with the passage of time or giving of notice or both would constitute, a default or event of default by the Borrower or Subsidiary thereof under any material agreement or contract, judgment, decree or order by which the Borrower or any of its respective properties may be bound or which would require the Borrower or Subsidiary thereof to make any payment thereunder prior to the scheduled maturity date therefore, where such default could reasonably be expected to result in a Material Adverse Change.
(o) As of the Closing Date, the Borrower and each of its Subsidiaries will be Solvent.
(p) The capitalization of the Borrower and each Significant Subsidiary of the Borrower consists of the Capital Stock, authorized, issued and outstanding, of such classes and series, with or without par value, described on Schedule II hereto. All such outstanding Capital Stock has been duly authorized and validly issued and are fully paid and nonassessable. Except as set forth in the Disclosure Documents, there are no outstanding warrants, subscriptions, options, securities, instruments or other rights of any type or nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or permit the issuance of, Capital Stock of the Borrower or any Subsidiary of the Borrower or are otherwise exercisable by any Person.
(q) The Borrower and each Subsidiary of the Borrower has good and marketable title to all assets and other property purported to be owned by it.
(r) None of the properties or assets of the Borrower is subject to any Lien, except Permitted Liens.
(s) All written information, reports and other papers and data produced by or on behalf of the Borrower and furnished to the Administrative Agent and the Lenders were, at the time the same were so furnished, complete and correct in all material respects. No document furnished or written statement made to the Administrative Agent or the Lenders by the Borrower in connection with the negotiation, preparation or execution of this Agreement or any other Loan Documents contains or will contain any untrue statement of a fact material to the creditworthiness of the Borrower or its Subsidiaries or omits or will omit to state a fact necessary in order to make the statements contained therein not misleading.
Appears in 1 contract
Sources: Letter of Credit Reimbursement Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is duly organized, validly existing and and, to the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization, except, in .
(b) Subject to the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case entry of the BorrowerOrders and subject to the terms thereof, has the corporate power execution, delivery and authority to execute, deliver and perform its obligations under this Agreement and any Notes and performance by each other agreement or instrument contemplated thereby Loan Party of each Loan Document to which it is or is to be a party and to borrow under this Agreement.
(b) The executionparty, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby hereby and thereby, are within the Borrowersuch Loan Party’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the such Loan Party’s charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument law, rule, regulation (including, without limitation, with respect to which the Borrower or any Subsidiary Borrower, Regulation X of the Borrower is a party Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or by which any of them or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under or require any payment to be made under, any material contractual restriction (except in respect of the Existing Second Lien Debt) or, to such indentureLoan Party’s knowledge, agreement any other contractual restriction, binding on or other instrument affecting such Loan Party or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the Borrower properties of any Loan Party or any Subsidiary of its Subsidiaries (except pursuant to the BorrowerExisting Second Lien Debt or the Indenture).
(c) No authorizationSubject to the entry of the Orders, 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 (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, (ii) the Borrower grant 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 priority thereof provided for in this Agreement Agreement, the Orders and the Intercreditor Agreement) or (iv) except for any notices that may be required pursuant to Section 6.01 or Section 6.02 or pursuant to the Intercreditor Agreement, the exercise by the Agent, the Collateral Agent or any Notes to be delivered by it, Lender of its rights under the Loan Documents or for the consummation remedies in respect of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectCollateral pursuant to the Collateral Documents.
(d) This Subject to the entry of the Orders, this Agreement has been, and any Notes to be delivered by it each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. Subject to the Borrower. This entry of the Orders, this Agreement is, and any Notes each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party party thereto enforceable against the Borrower such Loan Party in accordance with their respective terms terms.
(subjecte) The audited Consolidated statement of financial position of the Borrower and its Consolidated Subsidiaries as at December 31, 2011, and the related audited Consolidated statement of earnings and Consolidated statement of 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, copies of which have been furnished to each Lender, fairly present, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the Consolidated statement of earnings and Consolidated statement of cash flows of the Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. The unaudited Consolidated statement of financial position of the Borrower and its Consolidated Subsidiaries as at September 30, 2012, and the related unaudited Consolidated statement of earnings and Consolidated statement of cash flows of the Borrower and its Consolidated Subsidiaries for the nine month period then ended, fairly present, the Consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the Consolidated statement of earnings and Consolidated statement of cash flows of the Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied, subject to normal year-end adjustments and other items, such as footnotes, omitted in interim statements. Since September 30, 2012, there has been no Material Adverse Effect.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) is reasonably likely to have a Material Adverse Effect, other than the Cases and as disclosed on Schedule 4.01(f) or publicly filed or furnished prior to the Effective Date on Form 8-K or any periodic report required or permitted to be filed or furnished under the Exchange Act with the Securities Exchange Commission or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
(g) 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 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) None of the Loan Parties is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) The Borrower and each of its Subsidiaries owns, or has the valid and enforceable right to use, all trademarks, service marks, trade names, domain names, goodwill associated with the foregoing, patents, copyrights, trade secrets and know-how (including all registrations and applications for registration of the foregoing) (collectively, “Intellectual Property”) necessary for the conduct of its business as currently conducted except where the failure to so own or license could not reasonably be expected to have a Material Adverse Effect. Except as disclosed on Schedule 4.01(f), no claim has been asserted and is pending, or to the enforcement knowledge of remediesthe Borrower, threatened, by any Person challenging the use of any such Intellectual Property by the Borrower or any Subsidiary or the validity or enforceability of any such Intellectual Property or alleging that the conduct of the business of the Borrower or any of its Subsidiaries infringes, misappropriates or otherwise violates the Intellectual Property rights of any other Person, nor does the Borrower know of any valid basis for any such claim, except, in each case, for such claims that, individually or in the aggregate, are not reasonably expected to have a Material Adverse Effect. Except as disclosed on Schedule 4.01(f), to applicable bankruptcythe knowledge of the Borrower, neither the use of such Intellectual Property by the Borrower or any of its Subsidiaries, nor the conduct of their respective businesses, infringes, misappropriates or otherwise violates the rights of any Person, except for such claims, infringements, misappropriations or violations that, individually or in the aggregate, are not reasonably expected to have a Material Adverse Effect.
(i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has resulted in or that could reasonably expected to have a Material Adverse Effect.
(ii) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan that in the aggregate could reasonably be expected to have a Material Adverse Effect.
(iii) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization, insolvencyinsolvent or has been terminated, moratorium within the meaning of Title IV of ERISA, or has been determined to be in “endangered” or “critical” status within the meaning of Section 432 of the Code or Section 305 of ERISA, and similar laws affecting creditors’ rights generallyno such Multiemployer Plan is reasonably expected to be in reorganization, insolvent or to be terminated, within the meaning of Title IV of ERISA or in endangered or critical status.
(iv) [Reserved].
(v) Except as would not reasonably be expected to have a Material Adverse Effect, no event comprising (A) the commencement of winding up of the UK Pension Scheme, (B) the cessation of participation in the UK Pension Scheme by any Affiliate of the Borrower or (C) the issue of a warning notice by the UK Pensions Regulator that it is considering issuing a financial support direction or contribution notice in relation to the UK Pension Scheme, has occurred, and (to the knowledge of the Borrower or Kodak Limited) the UK Pensions Regulator has not stated any intention to do so.
(vi) No Loan Party nor any Affiliate of any Loan Party has incurred any liability to the UK Pension Scheme as a result of ceasing to participate in the UK Pension Scheme and (to the knowledge of the Borrower or Kodak Limited) no Affiliate of any Loan Party has stated any intention to cease to participate in the UK Pension Scheme, except as would not reasonably be expected to have a Material Adverse Effect.
(vii) No Loan Party nor any Affiliate of any Loan Party has been notified by the Trustees of the UK Pension Scheme that the UK Pension Scheme is being wound up and (to the knowledge of the Borrower or Kodak Limited) the Trustees of the UK Pension Scheme have not stated any intention to do so, except as would not reasonably be expected to have a Material Adverse Effect.
(viii) Except as would not reasonably be expected to have a Material Adverse Effect, (A) the UK Pension Schemes are duly registered for HMRC tax purposes; (B) prior to the Petition Date all material obligations of each Affiliate required to be performed in connection with the UK Pension Schemes and any funding agreements therefor were performed in a timely fashion and there were no material outstanding disputes involving any Affiliates concerning the UK Pension Schemes; and (C) all material obligations of each Affiliate required to be performed in connection with the UK Pension Schemes and any funding agreements therefor were performed in a timely fashion and there were no material outstanding disputes involving any Affiliates concerning the UK Pension Schemes.
(k) Except as could not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect, (i) each of the Borrower and its Subsidiaries has filed all Federal income tax returns and all other tax returns, domestic and foreign, required to be filed by it and has paid all taxes and assessments payable by them that have become due and payable and (ii) with respect to each of the Borrower and its Subsidiaries, there are no claims being asserted in writing with respect to any taxes.
(l) Except to the extent the Borrower or Subsidiary has set aside on its books adequate reserves (A) the operations and properties of the Borrower and each of its Consolidated Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, except as could not reasonably be expected to have a Material Adverse Effect, (B) all past non-compliance with such Environmental Laws and Environmental Permits has been or is reasonably expected to be resolved without ongoing obligations or costs that have had or are reasonably expected to have a Material Adverse Effect and (C) no circumstances exist that are reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of its Subsidiaries or any of their properties that is reasonably expected to 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 is reasonably expected to have a Material Adverse Effect.
(m) The Borrower and each of its Subsidiaries has good and marketable fee simple title to or valid leasehold interests in all of the real property owned or leased by the Borrower or such Subsidiary and good title to all of their personal property, except where the failure to hold such title or leasehold interests, individually or in the aggregate is not reasonably expected to have a Material Adverse Effect. The Borrower and its Subsidiaries enjoy peaceful and undisturbed possession under all of their respective leases except where the failure to enjoy such peaceful and undisturbed possession, individually or in the aggregate, is not reasonably expected to have a Material Adverse Effect. As of the Effective Date, each Material Real Property is set forth on Schedule 4.01(m).
(n) All factual information, taken as a whole, furnished by or on behalf of the Borrower and its Subsidiaries, taken as a whole, in writing to the Agent, the Collateral Agent, the Arranger or any Lender on or prior to the Effective Date, for purposes of this Agreement and all other such factual information taken as a whole, furnished by the Borrower on behalf of itself and its Subsidiaries, taken as a whole, in writing to the Agent, the Collateral Agent, the Arranger or any Lender pursuant to the terms of this Agreement will be, true and accurate in all material respects on the date as of which such information is dated or furnished and not incomplete by knowingly omitting to state any material fact necessary to make such information, taken as a whole, not misleading at such time, provided, however, that with respect to any projected financial information or forward-looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions, and subject to such qualifications, believed to be reasonable at the time made.
(i) Subject to the entry of the Orders, all filings and other actions necessary to perfect and protect the security interest in the Collateral created (or to be created) under the Collateral Documents to ensure that such security interest remains in full force and effect have been taken, (ii) the Collateral Documents, when executed and delivered (and at all times thereafter), create in favor of the Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected security interest in the Collateral having the priority set forth in this Agreement, the Orders, the Security Agreement and the Intercreditor Agreement, securing the payment of the Secured Obligations (as defined in the Security Agreement), and (iii) except to the extent that a longer period within which to take such actions has been provided for pursuant to the paragraph following Section 5(c)(vii) of the Amendment Agreement (and only to such extent), all filings and other actions necessary to perfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents and the Orders.
(p) As of the Effective Date, the Borrower believes in good faith, based upon information known to it as of the Effective Date and assumptions believed by it to be reasonable as of the Effective Date, that the Specified Sale shall occur on or prior to the Maturity Date for an aggregate gross cash purchase price at consummation of not less than the Minimum Proceeds Amount.
(q) (i) Set forth on Part A of Schedule II hereto is a complete and accurate list of all direct and indirect Subsidiaries of the Borrower that are organized under the laws of a state of the United States of America, and (ii) set forth on Part B of Schedule II hereto is a complete and accurate list of all direct Material Subsidiaries of the Borrower, showing, in each case, as of the Effective Date (as to each such Subsidiary) the jurisdiction of its fo
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Eastman Kodak Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto the Lender that:
(a) Each of the Borrower and its Subsidiaries (i) is it has been duly organizedincorporated, validly existing exists and is in good standing under the laws of the jurisdiction of its organization, except, incorporation and each jurisdiction where it carries on business and has been duly licensed to carry on business in the case of any such Subsidiary, all jurisdictions where the failure so to qualify would not result in a Material Adverse Effect, it is carrying on business,
(iib) it has the requisite power and authority to own its property enter into, execute and assets deliver and to carry on its business as now conductedkeep, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect observe and (iv) in the case perform all of the Borrowercovenants, has the corporate power agreements and authority to execute, deliver and perform its other obligations made by or imposed on it under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.(the "LOAN DOCUMENT"),
(bc) The the Loan Document and all other instruments and agreements delivered by the borrower to the Lender pursuant to this Agreement have been or will be validly executed by it or on its behalf and, when delivered to the Lender, will be legal, valid and binding obligations of it, enforceable in accordance with their respective terms, except as enforcement may be limited by,
(i) applicable bankruptcy, insolvency, moratorium, reorganization and similar laws at the time in effect affecting the rights of creditors generally, and
(ii) equitable principles which may limit the availability of certain remedies, including the remedy of specific performance,
(d) the execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do Loan Document does not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any material provision of any indenture regulation, order or other material 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 the Borrower or any Subsidiary of the Borrower it is a party or by which it is bound except such as have been obtained,
(e) there are no suits or judicial proceedings or proceedings before any governmental commission, board or other agency, actual, pending or to its knowledge threatened against it which involves a significant risk of them a judgment or liability which, if satisfied, would have an adverse effect upon its financial position or the ability to meet its obligations under this Agreement or to grant the Loan Document,
(f) it is not in default under any guarantee, note or other instrument evidencing any indebtedness, other than as disclosed in writing to the Lender by the Borrower, and to its knowledge there exists no state of their property facts which, after notice or lapse of time or both or otherwise, would constitute such a default, and
(g) no event is or may be bound or affectedoutstanding which constitutes, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indentureboth would constitute, agreement or other instrument or an Event of Default (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generallydefined below).
Appears in 1 contract
Sources: Loan Agreement (Vumee Inc.)
Representations and Warranties of the Borrower. The Borrower Effective as of the Initial Closing Date and the date of each Advance, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) Each of the Borrower It is a national banking association and its Subsidiaries (i) is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) America and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Trust Agreement and any Notes (assuming due authorization, execution and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other agreement or instrument contemplated thereby Operative Agreements to which it the Trust Company or the Owner Trustee, as the case may be, is or is to will be a party and each other agreement, instrument and document to borrow under this Agreement.be executed and delivered by it on or before such Closing Date in connection with or as contemplated by each such Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party, either in its individual capacity or (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of this Agreement Holders) as the Owner Trustee, as the case may be, has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law Legal Requirement relating to its banking or order trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict withwould materially and adversely affect its ability, result in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon or with respect to any property or assets now owned or hereafter acquired Governmental Action by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement regulating its banking or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).trust powers;
Appears in 1 contract
Sources: Participation Agreement (Veritas Software Corp /De/)
Representations and Warranties of the Borrower. The To induce the Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Agent and the Lenders (which representations and warranties shall be made on and as followsof the Effective Date) that after giving effect to the amendments and waivers set forth herein:
(a) Each of the The Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority and the legal right to executeexecute and deliver this Amendment, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) perform the transactions contemplated hereby. The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby Amendment, (a) are within the Borrower’s corporate powers, power; (b) have been duly authorized by all necessary corporate action and, if required, stockholder or other action, and ; (c) do not (i) contravene the charter or other constitutive documents or by-laws of cause the Borrower or any Subsidiary other Credit Party to be in default under (i) any provision of the Borrower’s or such Credit Party’s articles or certificate of incorporation or bylaws, (ii) violate any law contractual restriction contained in any indenture, loan or order of any Governmental Authority or any provision of any indenture credit agreement, lease, mortgage, security agreement, bond, note or other material agreement or instrument to which binding on or affecting the Borrower or any Subsidiary of the Borrower is a party such Credit Party or by which any of them its property, or any of their property is or may be bound or affected, (iii) conflict withany law, result in a breach of rule, regulation, order, license requirement, writ, judgment, award, injunction, or constitute decree applicable to, binding on or affecting the Borrower or such Credit Party or its property; (alone or with notice or lapse of time or bothd) a default under any such indenture, agreement or other instrument or (iv) will not result in the creation or imposition of any Lien upon or with respect to any of the property or assets now owned or hereafter acquired by of the Borrower or such Credit Party or any Subsidiary thereof other than those in favor of the Borrower.
Agent or any Lender, all pursuant to the Loan Documents; and (ce) No authorization, do not require the consent or approval or other action by, and no notice to or filing with, of any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itother Person, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that other than those which have been duly obtained, made or obtained complied with and which are in full force and effect.
(db) This Agreement Amendment has been, and any Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by the Borrower. This Agreement isEach of this Amendment, and any Notes when delivered hereunder will be, the Loan Documents (as amended or modified hereby) to which each Credit Party is a party is the legal, valid and binding obligation of the Borrower such Credit Party, enforceable against the Borrower such Credit Party in accordance with their respective terms (its terms, subject, as to the enforcement of remediesenforceability, to (A) any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or other similar laws now or hereafter in effect relating to or affecting the enforceability of creditors’ rights generally)generally and (B) general equitable principles, whether applied in a proceeding at law or in equity, and is in full force and effect.
(c) The representations and warranties of each Credit Party contained in each Loan Document (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are true and correct in all material respects on and as of the date hereof as though made on and as of the date hereof.
(d) No Default or Event of Default has occurred and is continuing or could reasonably be expected to occur after giving effect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (Synnex Corp)
Representations and Warranties of the Borrower. The In order to induce the Banks and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto each Bank and Administrative Agent that the following statements are true, correct and complete:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it Amendment No. 1 and the consummation of Credit Agreement as amended by this Amendment No. 1 (the transactions contemplated thereby “Amended Credit Agreement”, and together with this Amendment No. 1, collectively, the “Amendment Documents”) are within the Borrower’s corporate powersits partnership authority, have been duly authorized by all necessary corporate action and, if required, stockholder requisite action, and do are not (i) contravene in conflict with the charter terms of any organizational instruments of such entity, or other constitutive documents any instrument or by-laws of the agreement to which Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower General Partner is a party or by which any of them Borrower, General Partner or any of their property is or respective assets may be bound or affected, ;
(ii) The officers of General Partner executing this Amendment No. 1 on behalf of Borrower hereunder have been duly elected or appointed and were fully authorized to execute the same at the time the same was executed;
(iii) conflict withThe execution and delivery of, and the performance of the obligations required to be performed by Borrower under, this Amendment No. 1 and the other Amendment Document do not and will not (a) violate any provision of, or, except for those which have been made or obtained, require any filing (other than SEC disclosure filings), registration, consent or approval under, any Law (including, without limitation, Regulation U), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it, except for such violations, or filings, registrations, consents and approvals which if not done or obtained would not likely cause a Material Adverse Change to occur, (b) result in a breach of or constitute (alone or with notice or lapse of time or both) a default under or require any such indenture, consent under any indenture or loan or credit agreement or any other agreement, lease or instrument to which it may be a party or by which it or its properties may be bound or affected except for consents which have been obtained or which if not obtained are not likely to cause a Material Adverse Change to occur, (ivc) result in in, or require, the creation or imposition of any Lien Lien, upon or with respect to any property or assets of its properties now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice which would likely cause a Material Adverse Change to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itoccur, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes cause it to be delivered in default under any such Law, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument which would likely cause a Material Adverse Change to occur; to the best of its knowledge, Borrower is in compliance with all Laws applicable to it and its properties where the failure to be in compliance would cause a Material Adverse Change to occur;
(iv) Each of this Amendment No. 1 and the other Amendment Document is a legal, valid and binding obligation of Borrower, enforceable in accordance with its terms, except to the extent that such enforcement may be limited by it when delivered hereunder will have beenapplicable bankruptcy, insolvency and other similar laws affecting creditors’ rights generally, as well as general principles of equity;
(v) This Amendment No. 1 has been duly executed and delivered by the Borrower. This Agreement is, ;
(vi) The representations and any Notes when delivered hereunder will be, the legal, valid and binding obligation warranties of the Borrower enforceable against contained in Article V of the Credit Agreement are and will be true and correct in all material respects on and as of the Amendment Effective Date to the same extent as though made on and as of such dates (except in those cases where such representation or warranty expressly relates to an earlier date, in which case such representations and warranties were true and correct as of such date, and except for changes in factual circumstances permitted hereunder), provided that Section 5.20 of the Credit Agreement is qualified insofar as the Borrower will be required to file this Amendment No. 1 in accordance connection with their respective terms its compliance with its periodic reporting obligations; and
(subject, as to the enforcement vii) No Default or Event of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium Default has occurred and similar laws affecting creditors’ rights generally)is continuing.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Loan Parties and the Subsidiaries of the Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effectincorporation, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and Effect, (iv) in the case of each of the BorrowerLoan Parties, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes each Loan Document to which it is or is to be a party and each other agreement or instrument contemplated thereby to which it is or is to be a party and (v) in the case of the Borrower, has the corporate power and authority to borrow under this Agreement.
(b) The execution, delivery and performance by each of the Borrower Loan Parties of this Agreement and any Notes each Loan Document to which it is or is to be delivered by it a party and the consummation of the transactions contemplated thereby are within the Borrowersuch Loan Party’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower such Loan Party or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture indenture, agreement or other material agreement or instrument to which the Borrower any Loan Party or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Loan Partyor any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower any Loan Party of this Agreement Agreement, the Notes or any Notes other Loan Document to which it is or is to be delivered by ita party, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any each of the Notes to be delivered by it and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each of the BorrowerLoan Parties party thereto. This Agreement is, and any each of the Notes and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each of the Borrower Loan Parties party thereto enforceable against the Borrower such Loan Party in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
(i) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2002, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, all audited and certified by Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Borrower and its Subsidiaries at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its Subsidiaries on a Consolidated basis as of the dates thereof.
(f) There has been no Material Adverse Change since December 31, 2002.
(g) Each of the Borrower and its Material Subsidiaries has good and marketable title to, or valid leasehold interests in, all their material properties and assets, except for such properties as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business and except for minor defects in title that do not interfere with the ability of the Borrower or any of its Material Subsidiaries to conduct its businesses as currently conducted. All such properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 5.02(b).
(h) Except as set forth in the financial statements referred to in subsection (e) of this Section 4.01, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries or any business, property or rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or any other Loan Document or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation, or in default with respect to any judgement, writ, injunction or decree of any Governmental Authority, where such violation or default could result in a Material Adverse Effect.
(i) Neither the Borrower nor any of its Subsidiaries is a party to any agreement or instrument or subject to any corporate restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Debt, or any other material agreement or instrument to which it is a party or by which it or any of its properties or assets are or may be bound, where such default could result in a Material Adverse Effect.
(j) Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Advance will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose or (ii) for any purpose which entails a violation of, or which is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X thereof.
(k) Neither the Borrower nor any of its Subsidiaries is (i) an “investment company”, as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended or (ii) a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended.
(l) The Borrower will use the proceeds of the Advances only as a commercial paper backstop and for lawful general corporate purposes.
(m) each of the Borrower and its Subsidiaries has filed or caused to be filed all federal, state and local tax returns required to have been filed by it and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, except taxes that are otherwise permitted in accordance with the provisions of Section 5.01(b).
(n) No information, report, financial statement, exhibit or schedule prepared or furnished by or on behalf of the Borrower to the Administrative Agent, the Documentation Agent, the Arranger or any Lender in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto contained, contains or will contain any material misstatement of fact or omitted, omits or will omit 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.
(o) Each of the Borrower and its Subsidiaries is in compliance in all material respects with the applicable provisions of ERISA and the regulations and published interpretations thereunder that are applicable to the Borrower and its Subsidiaries. As of the date hereof, no Reportable Event has occurred as to which the Borrower or any of its Subsidiaries was required to file a report with the PBGC, and no material unfunded vested liabilities exist under any Plan.
(p) Each of the Borrower and its Subsidiaries is in substantial compliance with all applicable federal, state and local environmental laws, regulations and ordinances governing its business, properties or assets with respect to discharges into the ground and surface water, emissions into the ambient air and generation, storage, transportation and disposal of waste materials or process by-products, except such noncompliances as are not likely to have a Material Adverse Effect. All licenses, permits or registrations required for the business of the Borrower and its Subsidiaries under any federal, state or local environmental laws, regulations or ordinances have been secured, and the Borrower and each Subsidiary are in substantial compliance therewith, except such licenses, permits or registrations the failure to secure or to comply therewith are not likely to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2009, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, all audited and certified by Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its Subsidiaries on a Consolidated basis as of the dates thereof required to be reflected or disclosed therein in accordance with GAAP.
(f) There has been no Material Adverse Change since December 31, 2009.
(g) Except as set forth in the financial statements referred to in subsection (e) of this Section 4.01, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries or any business, property or rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, is reasonably expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation (including, without limitation, any ERISA or environmental law, rule or regulation), or in default with respect to any judgment, writ, injunction or decree of any Governmental Authority, where such violation or default is reasonably expected to result in a Material Adverse Effect.
(h) Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Advance will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which entails a violation of, or which is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X thereof.
(i) Neither the Borrower nor any of its Subsidiaries is an “investment company”, as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
(j) The Borrower will use the proceeds of the Advances as a commercial paper backstop and for other lawful general corporate purposes.
(k) Each of the Borrower and its Subsidiaries has filed or caused to be filed all federal income tax and all other material state and local tax returns required to have been filed by it and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, except taxes that are otherwise permitted to remain unpaid in accordance with the provisions of Section 5.01(b).
(l) All information, reports, financial statements, exhibits or schedules prepared or furnished by or on behalf of the Borrower to the Agent, Arrangers or any Lender in connection with the negotiation of this Agreement or delivered pursuant hereto contained, contains or will contain no material misstatement of fact and did not omit, does not omit and will not omit 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.
Appears in 1 contract
Sources: 364 Day Credit Agreement (United Parcel Service Inc)
Representations and Warranties of the Borrower. The ---------------------------------------------- Borrower represents and warrants as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse EffectDelaware, (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 the requisite corporate power and authority to own or lease and operate its property and assets properties and to carry on its business as now conducted, except, in the case of any such Subsidiary, conducted except where the failure to do so to qualify would not result in have a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreement.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it the Loan Documents, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not (i) contravene the charter or other constitutive documents Borrower's certificate of incorporation or by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (ii) violate any law law, rule or order regulation (including, without limitation, the Securities Act of any Governmental Authority or any provision 1933 and the Securities Exchange Act of any indenture or other material agreement or instrument to which 1934 and the Borrower or any Subsidiary regulations thereunder, and Regulations U and X issued by the Board of Governors of the Borrower is a party Federal Reserve System, each as amended from time to time), or by which any of them order, writ, judgment, injunction, decree, determination or any of their property is or may be bound or affectedaward, (iii) conflict with, with or result in a the breach of of, or constitute (alone or with notice or lapse of time or both) a default under under, any such contract, loan agreement, indenture, agreement 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 have a Material Adverse Effect, or (iv) result in or require the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by of the properties of the Borrower or its Subsidiaries. The Borrower is not in violation of any Subsidiary such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of the Borrower.any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, except for such violation or breach which would not have a Material Adverse Effect. Credit Agreement ----------------
(c) No authorizationExcept as have been obtained, 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 the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itthe Loan Documents, or for the consummation of the transactions contemplated hereby and therebyhereby, except for and to the extent that any failure to obtain such authorizationsauthorization, approvals, actions, notices approval or filings that other action would not have been made or obtained and are in full force and effecta Material Adverse Effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by Each of the Borrower. This Agreement Loan Documents is, and any the Notes when delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its terms.
(e) The Borrower has heretofore furnished to each of the Lenders consolidated balance sheets of the Borrower and its Subsidiaries as at January 3, 1997 and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for the fiscal year ended on said date, with the opinion thereon (in the case of said consolidated balance sheet and statements) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP. All such financial statements are complete and correct and fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at said date and the consolidated results of their respective terms operations for the fiscal year ended on said date, all in accordance with GAAP. Since January 3, 1997, there has been no Material Adverse Change.
(subjectf) No information, as exhibit or report furnished by or on behalf of the Borrower to the enforcement Administrative Agent or any Lender in connection with the execution of remediesthe Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein taken as a whole, in the light of the time and circumstances under and the time at which they were made, not misleading.
(g) There is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator which (i) is reasonably likely to have a Material Adverse Effect or (ii) 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 Credit Agreement ---------------- 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 bankruptcyinterest and penalties, reorganization, insolvency, moratorium except in any case where the failure to file any such return or pay any such tax is not in any respect material to the Borrower or the Borrower and similar laws affecting creditors’ rights generally)its Subsidiaries taken as a whole.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the 4.1.1. The Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) Delaware and has the all requisite corporate power and authority to own own, lease and operate its property and assets properties and to carry on its business as now being conducted. The Borrower has heretofore delivered to the Lenders accurate and complete copies of its Certificate of Incorporation and Bylaws, except, as currently in the case full force and effect.
4.1.2. The Borrower is not in violation or default of any such Subsidiaryterm of its Certificate of Incorporation or Bylaws, where the failure so to qualify would not result in a Material Adverse Effector of any provision of any mortgage, (iii) is qualified to do business in every jurisdiction where such qualification is requiredindenture, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrowercontract, has the corporate power and authority to executeagreement, deliver and perform its obligations under this Agreement and any Notes and each other agreement instrument or instrument contemplated thereby contract to which it is party or by which it is bound, or of any judgment, decree, order, writ or, to be a party and its knowledge, any statute, rule or regulation applicable to borrow under this Agreement.
(b) the Borrower. The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it the Loan Documents, and the consummation of the transactions contemplated thereby thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not will not, with or without the passage of time or giving of notice, result in any violation or contravene (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower’s Certificate of Incorporation or Bylaws, (ii) violate any law law, license, authorization, approval or order of any Governmental Authority permit or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of any contractual restriction binding on or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of affecting the Borrower.
(c) 4.1.3. No authorization, 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 Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectLoan Document.
(d) 4.1.4. This Agreement has been, and any Notes to be delivered by it the other Loan Documents when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes the other Loan Documents when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectterms.
4.1.5. There is no pending or threatened action, as suit, investigation, litigation or proceeding affecting the Borrower before any court, governmental agency or arbitrator that purports to affect the enforcement legality, validity or enforceability of remediesany Loan Document, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(ai) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, incorporation; (ii) has the all requisite power corporate or other power, and authority has all material governmental licenses, authorizations, consents and approvals necessary to own its property and assets and to carry on its business as now being or as proposed to be conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, ; and (iii) is qualified to do business and is in every jurisdiction where good standing in all jurisdictions in which the nature of the business conducted by it makes such qualification is required, except necessary and where the failure so to qualify would not result could (either individually or in the aggregate) have a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this AgreementEffect.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any the Notes to be delivered executed by it and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not contravene: (i) contravene the such Loan Party's charter or other constitutive documents or by-laws (or other equivalent organizational documents); or (ii) any law or any material contractual restriction binding on or affecting such Loan Party or, to the knowledge of the Borrower or any Subsidiary chief financial officer of the Borrower, any other contract the breach of which would limit the ability of any Loan Party to perform its obligations under this Agreement or the Notes; and (ii) violate any law or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) will not result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by Property of the Borrower or any Subsidiary of its Subsidiaries pursuant to the Borrowerterms of any agreement or instrument.
(c) No authorization, 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 any Loan Party of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectNotes.
(d) This Agreement has been, and any each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, has been duly executed and any Notes when delivered hereunder will be, by each Guarantor. Assuming that this Agreement has been duly executed by the legal, valid Administrative Agent and binding obligation each of the Borrower enforceable against the Borrower in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).the
Appears in 1 contract
Sources: Revolving Credit Agreement (Telecomunicaciones De Puerto Rico Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each of the Loan Parties and the Subsidiaries of the Borrower and its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effectincorporation, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and Effect, (iv) in the case of each of the BorrowerLoan Parties, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes each Loan Document to which it is or is to be a party and each other agreement or instrument contemplated thereby to which it is or is to be a party and (v) in the case of the Borrower, has the corporate power and authority to borrow under this Agreement.
(b) The execution, delivery and performance by each of the Borrower Loan Parties of this Agreement and any Notes each Loan Document to which it is or is to be delivered by it a party and the consummation of the transactions contemplated thereby are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder Stockholder action, and do not (i) contravene the charter or other constitutive documents or by-laws of the Borrower such Loan Party or any Subsidiary of the Borrower, (ii) violate any law or order of any Governmental Authority or any provision of any indenture indenture, agreement or other material agreement or instrument to which the Borrower any Loan Party or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower any Loan Party or any Subsidiary of the Borrower.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower any Loan Party of this Agreement Agreement, the Notes or any Notes other Loan Document to which it is or is to be delivered by ita party, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any each of the Notes to be delivered by it and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each of the BorrowerLoan Parties party thereto. This Agreement is, and any each of the Notes and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each of the Borrower Loan Parties party thereto enforceable against the Borrower such Loan Party in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ ' rights generally).
(i) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 1996, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, all audited and certified by Deloitte & Touche LLP, independent public accountants, and (ii) the Consolidated balance sheets of each of the Guarantors and its Subsidiaries as at December 31, 1996, and the related Consolidated statements of income and cash flows of each of the Guarantors and its Subsidiaries, in the form submitted by such Guarantor to (A) in the case of UPSNY and UPSO, the Interstate Commerce Commission and (B) in the case of UPSCO, the Department of Transportation, in each case copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Borrower and its Subsidiaries and of each of the Guarantors and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries and of each of the Guarantors and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Such balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of the Borrower and its Subsidiaries on a Consolidated basis and of each of the Guarantors and its Subsidiaries on a Consolidated basis, respectively, as of the dates thereof.
(f) There has been no Material Adverse Change since December 31, 1996.
(g) Each of the Borrower and its Material Subsidiaries has good and marketable title to, or valid leasehold interests in, all their material properties and assets, except for such properties as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business and except for minor defects in title that do not interfere with the ability of the Borrower or any of its Material Subsidiaries to conduct its businesses as currently conducted. All such properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 5.02(b).
(h) Except as set forth in the financial statements referred to in subsection (e) of this Section 4.01, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries or any business, property or rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or any other Loan Document or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation, or in default with respect to any judgement, writ, injunction or decree of any Governmental Authority, where such violation or default could result in a Material Adverse Effect.
(i) Neither the Borrower nor any of its Subsidiaries is a party to any agreement or instrument or subject to any corporate restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Debt, or any other material agreement or instrument to which it is a party or by which it or any of its properties or assets are or may be bound, where such default could result in a Material Adverse Effect.
(j) Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock. No part of the proceeds of any Advance will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose or (ii) for any purpose which entails a violation of, or which is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation G, T, U or X thereof.
(k) Neither the Borrower nor any of its Subsidiaries is (i) an "investment company", as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended or (ii) a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended.
(1) The Borrower will use the proceeds of the Advances only for lawful general corporate purposes.
Appears in 1 contract
Sources: Credit Agreement (United Parcel Service of America Inc)
Representations and Warranties of the Borrower. The In order to induce the Lenders to make the Revolving Credit Advances hereunder, the Borrower represents makes the following representations and warrants as followswarranties to the Lenders:
(a) Each of the Borrower and its Subsidiaries (i) Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes and each other agreement or instrument contemplated thereby to which it is or is to be a party and to borrow under this Agreementincorporation.
(b) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any the Notes to be delivered executed by it and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s such Loan Party's corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not contravene (i) contravene the such Loan Party's charter or other constitutive documents or by-laws (or other equivalent organizational documents) or (ii) any law or any material contractual restriction binding on or affecting such Loan Party or, to the knowledge of such Loan Party's chief executive officer, chief financial officer, treasurer or controller or any vice president, any other contract the Borrower breach of which would limit the ability of any Loan Party to perform its obligations under this Agreement or the Notes. No Loan Party nor any Subsidiary of the Borrower, (ii) violate any law or order a Loan Party is in violation of any Governmental Authority law, rule, regulation, order, writ, judgment, injunction, decree, determination or any provision award applicable to it, or in breach of any indenture indenture, agreement, lease or other material agreement instrument, the violation or instrument to which the Borrower or any Subsidiary of the Borrower is a party or by which any of them or any of their property is or may be bound or affected, (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) which is reasonably likely to have a default under any such indenture, agreement or other instrument or (iv) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the BorrowerMaterial Adverse Effect.
(c) No authorization, 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 any Loan Party of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectNotes.
(d) This Agreement has been, and any each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement has been duly executed and delivered by each Guarantor. Assuming that this Agreement has been duly executed by the Administrative Agent and each of the Lenders, this Agreement is, and any each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms terms. Assuming that this Agreement has been duly executed by the Administrative Agent and each of the Lenders, this Agreement is the legal, valid and binding obligation of each Guarantor enforceable against each Guarantor in accordance with its terms.
(subjecte) The Consolidated balance sheet of the Borrower (or its predecessor entities) and its Subsidiaries as at December 31, 1999, and the related Consolidated statements of income and cash flows of the Borrower (or its predecessor entities) and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LP, independent public accountants, copies of which have been furnished to each Lender, fairly and accurately represent the Consolidated financial condition of the Borrower (or its predecessor entities) and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower (or its predecessor entities) and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) There is no pending or (to the knowledge of any Loan Party) threatened action or proceeding, including, without limitation, any Environmental Action, affecting any Loan Party or any of its Subsidiaries before any court, governmental agency or arbitrator that is initiated by any Person other than a Lender in its capacity as a Lender that purports to affect the legality, validity or enforceability of this Agreement or any Note.
(g) Neither the Borrower nor any of its Subsidiaries is an Investment Company, as such term is defined in the Investment Company Act of 1940, as amended.
(h) No Loan Party is 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.
(i) As of the date hereof, the Borrower has no direct or indirect Significant Subsidiaries, except as set forth in Schedule 4.01(i).
(j) The Borrower and the Guarantors are Solvent.
(k) Each Loan Party and each of its respective Subsidiaries have filed all federal, state, commonwealth and local tax returns required to be filed and have paid all taxes shown thereon to be due, including interest and penalties, or have provided adequate reserves therefor; no unpaid or uncontested assessments have been made against any Loan Party or any Subsidiary of any Loan Party by any taxing authority, nor has any unpaid or uncontested penalty or deficiency been assessed by any such authority, and all contested assessments have been disclosed to the enforcement Administrative Agent and adequate reserves have been made therefor. Such tax returns properly reflect the income and taxes of remedieseach respective Loan Party and its Subsidiaries for the periods covered thereby, subject only to reasonable adjustments required by the corresponding taxing authorities upon audit or other adjustments not reasonably likely to have a Material Adverse Effect.
(l) No Loan Party is subject to any labor dispute with its employees which is reasonably likely to have a Material Adverse Effect.
(m) No written information, exhibit or report furnished by any Loan Party to the Administrative Agent or any Lender in connection with the negotiation of this Agreement contained any material misstatement of fact or omitted to state a material fact necessary to make the statements contained therein not misleading.
(n) The operations and properties of each Loan Party comply in all material respects with all applicable bankruptcyEnvironmental Laws; all necessary Environmental Permits have been obtained and are in effect for the operations and properties of each Loan Party, reorganizationand each Loan Party is in compliance in all material respects with all such Environmental Permits; none of the operations or properties of any Loan Party is subject to any Environmental Action alleging the violation of any Environmental Law; none of the operations of any Loan Party are the subject of a federal, insolvencystate, moratorium and similar laws affecting creditors’ rights generally)commonwealth or local investigation evaluating whether any remedial action is needed to respond to a release of any hazardous or toxic waste, substance or constituent, or any other substance into the environment, which Environmental Action or remedial action is reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Sources: Revolving Credit Agreement (Telecomunicaciones De Puerto Rico Inc)
Representations and Warranties of the Borrower. The Borrower Effective as of the Initial Closing Date and the date of each Advance, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) Each of the Borrower It is a national banking association and its Subsidiaries (i) is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of its organization, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (ii) America and has the requisite power and authority to own its property and assets and to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect and (iv) in the case of the Borrower, has the corporate power and authority to execute, deliver enter into and perform its obligations under this the Trust Agreement and any Notes (assuming due authorization, execution and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other agreement or instrument contemplated thereby Operative Agreements to which it the Trust Company or the Owner Trustee, as the case may be, is or is to will be a party and each other agreement, instrument and document to borrow under this Agreement.be executed and delivered by it on or before such Closing Date in connection with or as contemplated by each such Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party, either in its individual capacity or (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of this Agreement Holders) as the Owner Trustee, as the case may be, has been duly authorized by all necessary action on its part and any Notes to be delivered by it neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby are within thereby, nor compliance by it with any of the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, terms and do not provisions thereof (i) contravene the charter does or other constitutive documents will require any approval or by-laws consent of the Borrower any trustee or holders of any Subsidiary of the Borrowerits indebtedness or obligations, (ii) violate does or will contravene any law Legal Requirement relating to its banking or order trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the creation of any Governmental Authority Lien upon any of its property under, (A) its charter or by-laws, or (B) any provision indenture, mortgage, chattel mortgage, deed of any indenture trust, conditional sales contract, bank loan or credit agreement or other material agreement or instrument to which the Borrower or any Subsidiary of the Borrower it is a party or by which any of them it or any of their property is or its properties may be bound or affected, which contravention, breach, default or Lien under clause (iiiB) conflict withwould materially and adversely affect its ability, result in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument party or (iv) result in the creation does or imposition of will require any Lien upon Governmental Action by any Governmental Authority regulating its banking or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrower.trust powers;
(c) No authorizationThe Trust Agreement and, approval or other action by, and no notice to or filing with, any Governmental Authority assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effect.
(d) This Agreement has been, and any Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower Holders, each other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by the Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower Trust Company or the Owner Trustee, as the case may be, in accordance with their respective the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party, either in its individual capacity or as the Owner Trustee, before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Operative Agreements to which it is or will become a party;
(e) It, either in its individual capacity or as the Owner Trustee, has not assigned or transferred any of its right, title or interest in or under the Lease, the Agency Agreement or its interest in any Property or any portion thereof, except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of the Loans and Holder Advances shall not be applied by the Owner Trustee, either in its individual capacity or as the Owner Trustee, for any purpose other than the purchase and/or lease of the Properties, the acquisition, installation and testing of the Equipment, the construction of Improvements and the payment of Transaction Expenses and the fees, expenses and other disbursements referenced in Sections 7.1(a) and 7.1(b) of this Agreement, in each case which accrue prior to the Rent Commencement Date with respect to a particular Property;
(h) Neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar security relating to a Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the enforcement provisions of remediesSection 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The Owner Trustee's principal place of business, chief executive office and office where the documents, accounts and records relating to applicable bankruptcythe transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 79 S▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, reorganization▇▇▇▇ ▇▇▇▇ ▇▇▇▇, insolvency▇▇▇▇ ▇▇▇▇▇;
(j) The Owner Trustee is not engaged principally in, moratorium and similar laws affecting creditors’ rights generally).does not have as one (1) of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the
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