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 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 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 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 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 Borrower hereby represents and warrants as followsthat:
(a) Each of the Borrower and its Subsidiaries (i) it is a limited partnership 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 requisite partnership power and authority and the legal right to own its property execute and assets deliver, and to carry on perform its business as now conductedobligations under, exceptthis Trust Agreement and has taken all necessary partnership action to authorize the execution, in delivery and performance of this Trust Agreement;
(b) this Trust Agreement has been duly executed and delivered by the case of any such SubsidiaryBorrower and constitutes a legal, 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 valid and (iv) in the case binding obligation of the Borrower, has enforceable in accordance with its terms, subject to the corporate power effects of bankruptcy, insolvency, reorganization, moratorium and authority other similar laws relating to executeor affecting the enforcement of creditors' rights generally, deliver general equitable principles and perform its obligations under this Agreement implied covenant of good faith 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.fair dealing;
(bc) The the execution, delivery and performance by the Borrower of this Trust Agreement and will not violate, result in a default under, or give rise to any Notes to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powersacceleration, have been duly authorized by all necessary corporate action andprepayment, if required, stockholder action, and do not (i) contravene the charter repurchase or other constitutive documents or by-laws redemption obligation of the Borrower or any Subsidiary which is a party to any Guarantee or Security Document as a result of (i) the Borrower, (ii) violate any law or order partnership agreement of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which the Borrower or any such Subsidiary or (ii) any law, rule or regulation binding on the Borrower or any such Subsidiary or any contractual obligation of the Borrower is a party and will not result in, or by which any of them or any of their property is or may be bound or affectedrequire, (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 on any of its or with respect their respective properties or revenues pursuant to any property such law, rule or assets now owned regulation or hereafter acquired contractual obligation, other than the Liens created by the Borrower or any Subsidiary of the Borrower.Security Documents; and
(cd) No authorizationno consent or authorization of, approval or other action by, and no notice to or filing with, or other act by or in respect of, any Governmental Authority arbitrator or governmental authority and no consent of any other Person is required for of the due Borrower in connection with the execution, delivery and performance by the Borrower delivery, performance, validity or enforceability of this Agreement or any Notes to be delivered by it, or for the consummation of the transactions contemplated hereby and therebyTrust Agreement, except for such authorizations, approvals, actions, notices or filings any of the foregoing 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 2 contracts
Sources: Trust Agreement (Sprint Spectrum Finance Corp), Trust Agreement (Sprint Spectrum Finance Corp)
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 represents and warrants as follows:
(a) Each of the Borrower and its Significant Subsidiaries (i) is a corporation duly organized, organized and 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 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, necessary (except where the failure to so to qualify would not result in constitute 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 AgreementChange).
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes the other Loan Documents to which it is or will be delivered by it a party, and the consummation receipt by the Borrower of the transactions contemplated thereby proceeds of Extensions of Credit on the date of any Extension of Credit, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not and will not contravene (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, 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 withany legal or contractual restriction binding on or affecting the Borrower (including, without limitation, the Minnesota PUC Order); and such execution, delivery and performance do not and will not 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 (other than pursuant to the Loan Documents) upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerits properties.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority Approval is required for in connection with the due execution, delivery and or performance by the Borrower of this Agreement or any Notes to be delivered by itLoan Document, or for other than (i) (A) the consummation of SEC Order and (B) the transactions contemplated hereby Minnesota PUC Order, which releases and thereby, except for such authorizations, approvals, actions, notices or filings that have been made or obtained orders are final and are in full force and effecteffect and not subject to appeal, rehearing, review or reconsideration, (ii) with respect to the Borrower’s obtaining any Extension of Credit after each Federal Trigger Date, a Supplemental Order and (iii) in respect of each State Trigger Date, additional Governmental Approvals required to be obtained for the term of this Agreement to extend past such State Trigger Date.
(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 each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with their respective terms terms, subject to the qualifications, however, that the enforcement of the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general application affecting rights and remedies of creditors and that the remedy of specific performance or of injunctive relief is subject to the discretion of the court before which any proceedings therefor may be brought.
(e) Since December 31, 2005, there has been no Material Adverse Change.
(f) The audited consolidated balance sheets of the Borrower and its Subsidiaries as at December 31, 2005, and the related audited consolidated statements of income of the Borrower and its Subsidiaries for the fiscal year then ended, and the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as at June 30, 2006 and the related unaudited consolidated statements of income for the six-month period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the six-month period ended June 30, 2006, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance, in all material respects, with GAAP.
(g) Except as disclosed in the Parent’s Report on Form 10-K for the year ended December 31, 2005 and Report on Form 10-Q for the period ended June 30, 2006, there is no pending or threatened action or proceeding affecting the Borrower or any of its Significant Subsidiaries or properties before any court, governmental agency or arbitrator, that might reasonably be expected to constitute a Material Adverse Change, and since December 31, 2005 there have been no material adverse developments in any action or proceeding so disclosed that might reasonably be expected to constitute a Material Adverse Change.
(h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan of the Borrower or any of its ERISA Affiliates which would result in a liability to the enforcement Borrower, no “prohibited transaction” has occurred with respect to any Plan of remediesthe Borrower that is reasonably expected to result in a liability to the Borrower and neither the Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any withdrawal liability under ERISA to any Multiemployer Plan, in each case that could reasonably be expected to constitute a Material Adverse Change.
(i) The Borrower has 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 the extent the Borrower is contesting in good faith by appropriate proceedings an assertion of liability based on such returns and has provided adequate reserves for payment thereof in accordance with GAAP.
(j) Neither the Borrower nor any Significant Subsidiary of the Borrower is engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock. After the making of each Extension of Credit, Margin Stock will constitute less than 25 percent of the assets (as determined by any reasonable method) of the Borrower and its Significant Subsidiaries on a consolidated basis.
(k) The Borrower is not an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(l) Neither the Borrower or any Affiliate of the Borrower (i) is a Sanctioned Person, (ii) has more than 15% of its assets in Sanctioned Countries, or (iii) derives more than 15% of its operating income from investments in, or transactions with, Sanctioned Persons or Sanctioned Countries. No part of the proceeds of any Advance hereunder will be used directly or indirectly to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country.
(m) Neither the making of the Advances hereunder nor the use of the proceeds thereof will violate the PATRIOT Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. The Borrower and its Significant Subsidiaries are in compliance in all material respects with the PATRIOT Act.
(n) Each of the Borrower and its Significant Subsidiaries has timely filed all material reports, documents and other materials required to be filed by it in order to comply with the requirements of all applicable bankruptcylaws, reorganizationrules, insolvencyregulations and orders of any governmental authority, moratorium and similar laws affecting creditors’ rights generally)is otherwise in compliance with the requirements of all applicable laws, rules, regulations and orders of any governmental authority in respect of the conduct of its business and the ownership and operation of its properties, except in each case to the extent that the failure to comply therewith, individually or in the aggregate, could not reasonably be expected to constitute a Material Adverse Change.
Appears in 2 contracts
Sources: Credit Agreement (Alliant Energy Corp), Credit Agreement (Interstate Power & Light 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 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 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 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 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 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 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 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 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 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 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 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 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 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) 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 AgreementWisconsin.
(b) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it Amendment and the consummation of the transactions contemplated thereby Credit Agreement, as amended hereby, are within the Borrower’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 or performance by the Borrower of this Agreement Amendment or any Notes the Credit Agreement, 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 or the Credit Agreement, and any Notes when delivered hereunder will beas amended hereby, the 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 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 or (ii) purports to affect the legality, validity or enforceability of this Amendment or the Credit Agreement, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)amended hereby.
Appears in 2 contracts
Sources: Credit Agreement (Manpower Inc /Wi/), Credit Agreement (Manpower Inc /Wi/)
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 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 follows:
(a) Each The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the Borrower State of Iowa 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 include: Letter Order issued March 29, 2022, in Docket No. ES22-26-000, by the FERC.
(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 (c) constitute Margin Stock.
(m) Neither the Borrower nor any Subsidiary is an “investment company” or a company “controlled” by an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.
(n) There are no claims, liabilities, investigations, litigation, notices of violation or liability, administrative proceedings, judgments or orders, whether asserted, pending or threatened, relating to any liability under or compliance with any applicable Environmental Law, against the Borrower or any Material Subsidiary or relating to any real property currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary, that would reasonably be expected to have a Material Adverse Effect. No Hazardous Materials have been or are present or are being spilled, discharged or released on, in, under or from property (real, personal or mixed) currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary in any quantity or manner violating, or resulting in liability under, any applicable Environmental Law, which violation or liability would reasonably be expected to have a Material Adverse Effect.
(o) No written statement or information furnished by or on behalf of the Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or delivered pursuant hereto, in each case as of the date such statement or information is made or delivered, as applicable, contained or contains, any material misstatement of fact or intentionally omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(p) Each Material Subsidiary as of the date hereof is set forth on Schedule III.
(q) The Borrower has implemented and maintains in effect policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers 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.
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 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 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 and warrants as follows:
(a) Each of the Borrower and its Subsidiaries (i) the Guarantor 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 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 each of the Borrower and the Guarantor of this Agreement and any Notes the other Loan Documents to be delivered by it it, and the consummation of the transactions contemplated thereby hereby, are within the Borrower’s 's or the Guarantor'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 or the Guarantor's charter or other constitutive documents or by-laws or (ii) law or any contractual restriction binding on or affecting either 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 BorrowerGuarantor.
(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 each of the other Loan Documents to be delivered by it when delivered hereunder will have been, duly executed and delivered by the BorrowerBorrower and the Guarantor. This Agreement is, and any Notes each of the other Loan Documents when delivered hereunder will be, the legal, valid and binding obligation of each of the Borrower and the Guarantor party thereto enforceable against the Borrower or the Guarantor, as the case may be, in accordance with their respective terms terms.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by either the Borrower or the Guarantor of this Agreement or the other Loan Documents to be delivered by it.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Claim, affecting the Holding Company or any of its Subsidiaries 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 Agreement or any Note or the consummation of the transactions contemplated hereby.
(f) The Consolidated balance sheet of the Holding Company and its Subsidiaries as at May 31, 1999, and the related Consolidated statements of income and cash flows of the Holding Company and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants, the consolidating balance sheet of the Holding Company and its Subsidiaries as at May 31, 1999, and the related consolidating statements of income and cash flows of the Holding Company and its Subsidiaries for the fiscal year then ended, duly certified by the chief financial officer of the Holding Company, and the Consolidated and consolidating balance sheet of the Holding Company and its Subsidiaries as at February 29, 2000, and the related Consolidated and consolidating statements of income and cash flows of the Holding Company and its Subsidiaries for the nine months then ended, duly certified by the chief financial officer of the Holding Company, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at February 29, 2000, 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 Holding Company and its Subsidiaries as at such dates and the Consolidated results of the operations of the Holding Company and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since May 31, 1999, there has been no Material Adverse Change.
(g) Each of the Borrower, the Guarantor and their Subsidiaries has good, marketable fee or leasehold title (as applicable) or ownership interest to all of the material assets and properties of the Borrower, the Guarantor and their Subsidiaries, free and clear of all Liens, other than Liens permitted by the Loan Documents.
(h) The operations and properties of each of the Borrower, the Guarantor and each of their Subsidiaries comply in all material respects with all applicable Environmental Laws, all past non-compliance with such Environmental Laws has been resolved without material ongoing obligations or costs, and no circumstances exist that could reasonably be likely to (i) form the basis of an Environmental Claim against the Borrower, the Guarantor or any of their 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.
(i) Set forth on Schedule 4.01(i) hereto is a complete and accurate list of all Subsidiaries of each of the Borrower and the Guarantor as of the date hereof, showing (as to each such Subsidiary) the enforcement jurisdiction of remediesits incorporation. All of the outstanding capital stock and other ownership interests (other than directors qualifying shares) in each of the Borrower's and the Guarantor's Subsidiaries has been validly issued, are fully paid and non-assessable and are owned by the Borrower, the Guarantor or one or more of their Subsidiaries free and clear of all Liens and, as of the date hereof, free of any outstanding options, warrants, rights of conversion or purchase or similar rights.
(j) Each of the outstanding securities issued by the Holding Company was duly authorized and validly issued, is fully paid and non-assessable, and is not and will not be subject to any preemptive or similar right or restriction. Each of those outstanding securities was acquired from the issuer in a transaction in compliance with the Securities Act of 1933, as amended, and other applicable bankruptcylaws.
(k) Neither the Borrower nor the Guarantor 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), reorganizationand 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.
(l) Neither the Borrower nor the Guarantor is an "investment company", insolvencyor a company "controlled" by an "investment company", moratorium and similar laws affecting creditors’ rights generally)within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Credit Agreement (Scholastic 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 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 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 4.1. 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) 4.2. 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 is, Each 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.
4.3. 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.
4.4. 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 Each of the Obligors represents and warrants as followsthat:
(a) Each The Company and each of the Borrower and its Subsidiaries (i) is are corporations duly organized, validly existing and in good standing under the laws of their respective jurisdictions of incorporation.
(b) Except as set forth on Schedule 4.6 to the jurisdiction of its organizationNote Purchase Agreement, exceptthe execution, 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 delivery 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 performance by each of the BorrowerObligors of this Amendment, has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any Notes New Note and each of the other agreement or instrument contemplated thereby Note Documents, as amended hereby, 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, hereby do not and do will not (i) contravene the such Obligor's charter or other constitutive documents bylaws (or by-laws of the Borrower or any Subsidiary of the Borrowerequivalent organizational documents), (ii) violate any law law, statute, rule or order of any Governmental Authority regulation, including without limitation the Communications Act, FCC Rules and those relating to copyright, or any provision of order, writ, judgment, injunction, decree, determination or award in any indenture manner that, either individually or other material agreement or instrument in the aggregate, could 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, (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 including, without limitation, the Senior Note Indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Obligor, any of its Subsidiaries, CS Wireless, TelQuest, or any of their properties in any manner that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, 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 of the properties or assets now owned or hereafter acquired by the Borrower revenues of any Obligor or any Subsidiary of the Borrowerits Subsidiaries.
(c) No authorizationExcept as set forth on Schedule 4.6 to the Note Purchase Agreement, approval no order, consent, approval, license, validation or other action byauthorization of, and no notice to or registration, filing or declaration with, or any exemption by any Governmental Authority or public body or authority or any subdivision thereof or any other third party including any radio, television or other license, Permit, certificate or approval granted or issued by the FCC or any other Governmental Authority (including any MDS, MMDS, ITFS, business radio, earth station or experimental licenses or permits issued by the FCC) is required for the due execution, delivery and delivery, recordation, filing or performance by the Borrower any Obligor of this Agreement Amendment, the New Note or any Notes other Note Document, 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 has been, Amendment and any Notes to be delivered by it when delivered hereunder will the New Note have been, been duly executed and delivered by the Borrowereach Obligor. This Agreement is, and any Notes when delivered hereunder will beAmendment, the New Note and each of the other Note Documents, as amended hereby, to which such Obligor is a party are legal, valid and binding obligation obligations of the Borrower each Obligor, enforceable against the Borrower such Obligor in accordance with their respective terms terms.
(subjecte) Except as disclosed on Schedule 5.7 to the Note Purchase Agreement and the letter to the Company dated January 22, 1998 from Conseco Capital Management, Inc., there are no actions, suits, investigations or proceedings pending or, to the best knowledge of the Obligors, threatened against or affecting the Company or any of its Subsidiaries or any property or revenues of the Company or any of its Subsidiaries in any court or before any arbitrator of any kind or before or by any Governmental Authority that (i) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (ii) purports to adversely affect this Amendment, the New Note, any of the other Note Documents, as to amended hereby or any of the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)transactions contemplated hereby.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) 3.1. 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.
3.2. As of the date hereof, 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) 3.3. 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 the consummation of the transactions contemplated thereby each other Loan Document 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 material contract, loan agreement, indenture, agreement 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, mortgage, deed of trust, lease or other instrument or agreement, the Borrowerviolation or breach of which could reasonably be expected to have a Material Adverse Effect.
(c) 3.4. Each of this Amendment and each other Loan Document has been duly executed and delivered by each Loan Party party thereto. Each of this Amendment and each other Loan Document is the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms.
3.5. 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 hereby represents and warrants as followsto the Lenders that:
(a) Each To the Borrower’s Knowledge, no Default or Event of Default exists under the Loan Agreement as 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 Agreementdate hereof.
(b) The execution and delivery of this Amendment by each Loan Party will result in valid and legally binding obligations of such entity enforceable against it in accordance with the respective terms and provisions hereof and thereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.
(c) The execution, delivery and performance by the Borrower and the other Loan Parties 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 Amendment has 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 terms of any of such Person’s organizational documents; (ii) conflict with or other constitutive documents result in any breach or by-laws contravention of, or result in or require the creation of any Lien, or require any payment by the Borrower to be made under (A) any contractual obligation to which the Borrower is a party or affecting the Borrower or the properties of the Borrower or any Subsidiary of the Borrowerits subsidiaries or (B) any order, (ii) violate any law injunction, writ or order decree of any Governmental Authority governmental authority or any provision of any indenture or other material agreement or instrument arbitral award to which the Borrower or any Subsidiary material portion 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 withviolate any applicable law in any material respect. No approval, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indentureconsent, 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 exemption, authorization, approval or other action by, and no or notice to to, or filing with, any Governmental Authority governmental authority or any other Person is necessary or required for on the due part of the Borrower or the other Loan Parties in connection with the execution, delivery and or performance by by, or enforcement against the Borrower or the other Loan Parties of, this Amendment, other than the filing of this Agreement any uniform commercial code financing statements or amendments thereto and 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 effectrequired under federal securities laws.
(d) This Each of the representations and warranties made by any Loan Party set forth in Article IV of the Loan Agreement has beenor in any other Loan Document are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Occurrence” are true and correct in all respects) on and as of the Second Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and any Notes warranties expressly relate to be delivered by it when delivered hereunder will have been, duly executed an earlier date.
(e) The Term A Loans and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will beTerm B Loans, the legal, valid Term A Notes and binding obligation Term B Notes constitute “First Lien Lender Claims” under and are entitled to the benefits of the Borrower enforceable against the Borrower in accordance with their respective terms Intercreditor Agreement.
(subject, f) The Loan Documents (as such term is modified by this Amendment) constitute First Lien Loan Documents under and are entitled to the enforcement benefits of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)the Intercreditor Agreement.
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 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, incorporation and (ii) has the all requisite corporate 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, 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 of this Agreement, the Notes, the Security Agreement and any Notes each other Transaction Document to which it is or is to be delivered by it a party, and the consummation of the other 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 or Borrower's by-laws of the Borrower or any Subsidiary of the Borrowerlaws, (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 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 the Borrower or (iv) except for the Liens created thereby, 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. The Borrower is not in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could reasonably be expected to have a Material Adverse Effect.
(c) No authorizationOther than those filings which have been made or will be made prior to the making of the Advance, 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 the Borrower of this Agreement the Loan Documents and the Transaction Document to which it is or any Notes to will be delivered by ita party, or for the consummation of the other transactions contemplated hereby and therebyhereby, except for such authorizations(ii) the grant by the Borrower of the Liens granted by them pursuant to the Security Agreement, approvals, actions, notices (iii) the perfection or filings that have been made maintenance of the Liens created by the Security Agreement (including the first priority nature thereof) or obtained and are (iv) the exercise by the Agent or any Lender of its rights under the Loan Documents or any of their rights under or remedies in full force and effectrespect of the Transaction Documents or the other Collateral pursuant to the Security Agreement.
(d) This Agreement has been, and any each of the Notes and each other Transaction Document to which the Borrower is or is to be delivered by it party when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and any Notes each of the Notes, each other Transaction Document to which the Borrower is party or is to be party when delivered hereunder will be, the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective its terms.
(e) There is no action, suit, investigation, litigation or proceeding affecting the Borrower, pending or threatened before any court, governmental agency or arbitrator.
(f) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of the Advance will be used in violation of Regulation U or any other regulation governing Margin Stock.
(g) The Security Agreement creates a valid and perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken. Upon the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, the Borrower will be the legal and beneficial owner of the Collateral subject to the Security Agreement free and clear of any Lien, except for the liens and security interests created or permitted under the Transaction Documents.
(h) The Borrower is not an "investment company," or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms (subjectare defined in the Investment Company Act of 1940, as to amended (the enforcement "1940 Act"). Neither the making of remediesthe Advance, to applicable bankruptcynor the application of the proceeds or repayment thereof by the Borrower, reorganizationnor the consummation of the other transactions contemplated hereby, insolvencywill violate any provision of the 1940 Act or any rule, moratorium regulation or order of the Securities and similar laws affecting creditors’ rights generally)Exchange Commission thereunder.
(i) The Borrower is Solvent.
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 a corporation duly organizedincorporated, validly existing and in good standing under the laws of the its respective jurisdiction of incorporation, is duly qualified as a foreign corporation and is in good standing in each jurisdiction as to which the location of its organizationassets or the nature of its business makes qualification necessary, exceptand has all power, in the case of any such Subsidiarycorporate or otherwise, where the failure so to qualify would not result in a Material Adverse Effect, (ii) has the requisite power and authority to own conduct its property and assets business and to carry on own, or hold under lease, its business as now conductedassets, exceptand to execute and deliver, in the case and to perform all of any such Subsidiaryits obligations under, 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 each 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 Documents to which it is or is to will be a party and to borrow under this Agreementparty.
(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 will be delivered by it and the consummation of the transactions contemplated thereby a 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 contravene (i) contravene the such Loan Party's charter or other constitutive documents or by-laws of the Borrower laws, or any Subsidiary of the Borrower, (ii) violate any law law, rule, regulation (including, without limitation, Regulation G, T, U 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 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 award binding on or affecting such Loan Party or any of their property is its properties, or may be bound or affected, (iii) conflict withany contractual restriction binding on or affecting such Loan Party or any of its properties, and do not 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 (other than pursuant hereto) upon or with respect to any property of its properties; and no Loan Party is in default in any material respect under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination, award or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerrestriction.
(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 the Borrower any Loan Party of this Agreement any Loan Document to which it is or any Notes to will be delivered by it, or for the consummation of the transactions contemplated hereby and thereby, a party except for such authorizations, approvals, actions, notices or filings that those which have been duly obtained or 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 each other Loan Document to which each Loan Party will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation of the Borrower such Loan Party enforceable against the Borrower such Loan Party in accordance with their respective its terms.
(e) The Consolidated balance sheets of the Borrower and its Subsidiaries as at December 31, 1995 and the related Consolidated statements of operations, stockholders' equity and cash flow of the Borrower and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Agent, fairly present the financial condition of the Borrower and its Subsidiaries as at such date and the results of the operations of the Borrower and its Subsidiaries for the year ended on such date, all in accordance with generally accepted accounting principles consistently applied, and since December 31, 1995 there has been no material adverse change, in the business, prospects or condition (financial or otherwise) or in the results of operations of the Borrower and its Subsidiaries taken as a whole.
(i) Each Loan Party has good title to all of the presently existing Collateral covered by the Collateral Documents to which it is or will be a party, free and clear of all Liens, except for Liens created under the Collateral Documents and Permitted Liens.
(ii) Schedule II sets forth a complete and accurate description and list of the locations, by state and street address, and the Person which owns all Real Property or interest in Real Property of the Borrower and its Subsidiaries as of the date hereof.
(iii) Each Lease or other agreement relating to the Real Property described in Schedule II is a valid and subsisting Lease or other agreement and is in full force and effect in accordance with the terms thereof; and the Borrower or its Subsidiary is in possession of all such leaseholds and no material default by the Borrower or any of its Subsidiaries exists under any such Lease or other agreement and, to the best of the Borrower's knowledge, no lessor has any accrued right to terminate any such Lease or other agreement on account of a default by the Borrower or its Subsidiaries.
(subjectg) As of the date hereof, the Borrower has delivered to the Agent a true and complete copy of each Service Agreement and of each amendment or modification thereof. Each such Service Agreement is a valid and subsisting agreement and is in full force and effect in accordance with the terms thereof; and no material default by the Borrower or any of its Subsidiaries exists under any such Service Agreement and, to the best of the Borrower's knowledge, no party to any of the Service Agreements has any accrued right to terminate any such Service Agreement on account of a default by the Borrower or any of its Subsidiaries.
(h) Other than as set forth on Schedule VII, no judgment, order, decree, injunction or other restraint affecting any Loan Party has been rendered or imposed by any court, governmental agency or arbitrator, and there is no pending or, to the best knowledge of the Borrower, threatened action or proceeding affecting any Loan Party before any court, governmental agency or arbitrator, which may materially adversely affect the business, prospects or condition (financial or otherwise) or operations of the Borrower and its Subsidiaries, taken as a whole, or which purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document.
(i) Set forth on Schedule III is a complete and accurate list of all of the Subsidiaries of the Borrower as of the date hereof, showing as of such date (as to each such Subsidiary) the jurisdiction of its incorporation, the number of shares of each class of Securities outstanding on the date hereof, the direct owner of the outstanding shares of each such class owned, and the jurisdictions in which such Subsidiary is qualified to do business as a foreign corporation. There are no outstanding options, warrants, rights of conversion or purchase, and similar rights to acquire Securities of any of the Subsidiaries, except as set forth on Schedule III, and all of the outstanding Securities of all of the Subsidiaries has been validly issued, is fully paid and nonassessable and is owned by the Borrower free and clear of (i) all liens, security interests and other charges or encumbrances and (ii) any restrictions (other than laws, rules or regulations) on the ability to vote or alienate such Securities.
(j) All information, exhibits and reports furnished in writing by or on behalf of the Borrower or any of its Subsidiaries and made available to the Agent or any Bank relating to the condition (financial or otherwise), operations, business or properties of the Borrower or such Subsidiary, are true, correct and complete and not misleading in all material respects.
(k) With respect to all business plans and other forecasts and projections furnished by or on behalf of the Borrower or any of its Subsidiaries and made available to the Agent or any Bank relating to the financial condition, operations, business, properties or prospects of the Borrower or any of its Subsidiaries, to the best of the Borrower's knowledge: (i) all facts stated as such therein are true and complete in all material respects, (ii) all facts upon which the forecasts or projections therein contained are based are true and complete in all material respects, and (iii) all estimates and assumptions were made in good faith and believed to be reasonable at the time made.
(l) Schedule V sets forth, as of the Fifth Amendment and Restatement Closing Date, all Debt of the Borrower and its Subsidiaries other than Debt representing miscellaneous liabilities not in excess of $5,000,000 in the aggregate.
(m) Neither the business nor the properties of the Borrower or any of its Subsidiaries are affected by any strike, lockout, fire, explosion, earthquake, embargo, act of God or of the public enemy or other casualty which could have a material adverse effect on the business, prospects, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries taken as a whole.
(n) No ERISA Event has occurred with respect to any Plan or is reasonably expected to occur with respect to any Plan.
(o) Schedule B (Actuarial Information) to the enforcement most recently completed annual report (Form 5500 Series) for each Plan of remediesthe Borrower or its Subsidiaries, copies of which have been or will be filed with the Internal Revenue Service and furnished to the Agent, is complete and accurate in all material respects 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.
(p) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any material Withdrawal Liability to any Multiemployer Plan. 57
(q) 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 Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(r) The Borrower and its Subsidiaries on a Consolidated basis are, and each Loan Party individually is, and after receipt and application of the Advances in accordance with the terms of this Agreement and execution of each Loan Document to which it is or is to be a party will be, Solvent.
(s) Neither the Borrower nor any Subsidiary of the Borrower is, or is required to be, registered under the Investment Company Act of 1940, as amended.
(t) Each of the Borrower and its Subsidiaries is in compliance in all material respects with the provisions of all Environmental Laws. Neither the Borrower nor any of its Subsidiaries nor, to the knowledge of the Borrower, any other Person, has engaged in any Environmental Activity, nor, to the knowledge of the Borrower, has any Environmental Activity otherwise occurred, in material violation of any provision of any applicable bankruptcyEnvironmental Laws.
(u) Neither the Borrower nor any of its Subsidiaries has any liability, reorganizationabsolute or contingent, insolvencyin connection with any Environmental Activity the satisfaction of which could have a material adverse effect on the business, moratorium prospects, condition (financial or otherwise) or results of operations of the Borrower and similar laws affecting creditors’ rights generallyits Subsidiaries taken as a whole.
(v) 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). No proceeds of any Advance will be used to purchase or carry any margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) in violation of applicable law, including, without limitation, Regulation U issued by the Board of Governors of the Federal Reserve System.
(w) The Intercompany Creditor (i) is not liable in respect of any Debt other than Intercompany Debt, (ii) has no other liabilities or obligations other than contingent obligations that are not material in amount in respect of operating leases entered into prior to May 1, 1993, and (iii) has not engaged in any operations, and has not received any notice of a claim or threatened claim in respect of any operations or the sale thereof, since May 1, 1993. 77
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 Amendment and the consummation of the transactions contemplated thereby Loan Documents, as amended hereby, to which it is 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 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 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 properties the effect of which would not have a Material Adverse Effect, or may be bound or affected, (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 (iv) result in affecting the creation or imposition Borrower, any of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower its Subsidiaries or any Subsidiary of the Borrowertheir properties except where such conflict would not have a Material Adverse Effect.
(cb) 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 to be delivered by it, or for the consummation of the transactions contemplated hereby and therebyLoan Documents, except for such authorizationsas amended hereby, approvals, actions, notices or filings that have been made or obtained and are in full force and effectto which it is a party.
(dc) 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
Sources: Credit Agreement (Intercel Inc/De)
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 remediescreditors’ rights generally or by equitable principles relating to enforceability.
(e) The 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 each of the fiscal years ended January 31, 2013, January 31, 2014 and January 30, 2015: (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) 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 Information Memorandum or any reports, financial statements, certificates or other information furnished 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 Tranche B 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, service marks, tradenames, copyrights, patents, franchises, licenses and other intellectual property (collectively, “IP Rights”) 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. Set forth on Schedule 4.01(o) is a complete and accurate list of all material registered or applications to register IP Rights owned or exclusively licensed by Borrower or any of its Subsidiaries as of the Tranche B Effective Date, after giving effect to the Transactions. To the knowledge of the Borrower, the conduct of the business of each of the Borrower and its Subsidiaries as currently conducted does not infringe upon or violate any rights held by any other Person, except for such infringements and violations which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Borrower, threatened, which, either individually or in the aggregate, would reasonably be expected to have 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.
(u) The Borrower has the power and authority to make the Borrowings herein provided for, to grant to the Collateral Agent the Liens described in the Security and Guarantee Documents executed by the Borrower and to perform all of its obligations hereunder and under the other Loan Documents executed by it. Each other Loan Party has the power and authority to grant to the Collateral Agent the Liens described in the Security and Guarantee Documents executed by such Person, and to perform all of its obligations under the Loan Documents executed by it.
(v) The Guarantee and Collateral Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable (except as enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium and or similar laws affecting the enforcement of creditors’ rights generallygenerally or by equitable principles relating to enforceability) security interest in the Collateral and the proceeds thereof and (1) when the Pledged Collateral (as defined in the Guarantee and Collateral Agreement) is delivered to the Collateral Agent, the Lien created under the Guarantee and Collateral Agreement shall constitute a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Pledged Collateral, in each case prior and superior in right to any other Person, and (2) when the financing statements in appropriate form describing the Collateral as “all assets” or using language of similar import or otherwise containing a reasonable description of the Collateral are filed in the offices specified on Schedule 4.01(v), the Lien created under the Guarantee and Collateral Agreement in the Collateral that may be perfected by the filing of a financing statement in such office will constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral, in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 5.03(a).
(w) Upon the recordation of the Guarantee and Collateral Agreement (or a short-form security agreement in form and substance reasonably satisfactory to the Borrower and the Collateral Agent) with the United States Patent and Trademark Office and the United States Copyright Office, together with the financing statements in appropriate form filed in
Appears in 1 contract
Sources: 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 and, where 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) 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 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 contravene (i) 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 or instrument to which the Borrower or any Subsidiary law, regulation (including, without limitation, Regulations U and X of the Borrower is a party or by which any Board 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 Governors of the BorrowerFederal Reserve System) or contractual restriction binding on or affecting the Loan Parties.
(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 either Loan Party of this Agreement Amendment or any Notes other Loan Document to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and therebya party, except for such those 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 effecteffect except that the Guarantor is required to report to its designated foreign exchange trading bank any payment to be made under the Guaranty at the time of making such payment.
(d) This Agreement has been, Amendment and any Notes to be delivered by it when delivered hereunder will the Guaranty have been, been duly executed and delivered by the Borrowereach Loan Party party thereto. This Agreement Amendment and each of the other Loan Documents, as amended hereby, to which the Borrower is a party is, and any Notes when delivered hereunder will bethe Guaranty is, the legal, valid and binding obligation of each of the Borrower and the Guarantor, respectively, enforceable against the Borrower each such Loan Party in accordance with their respective terms terms.
(subjecti) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 28, 1997, 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, independent public accountants, copies of which have been furnished to each Lender, fairly present 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 28, 1997, there has been no Material Adverse Change with respect to the Borrower, other than as provided on Schedule 4.01(e)(i) hereto.
(ii) The balance sheet of the Guarantor and its Subsidiaries as at December 31, 1997, and the related statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Samil Accounting Corporation, a member firm of Coopers & Lybr▇▇▇, ▇▇dependent public accountants, copies of which have been furnished to each Lender, fairly present the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the periods ended on such date, all in accordance with generally accepted financial accounting standards in the Republic of Korea consistently applied. Since December 31, 1997, there has been no Material Adverse Change with respect to the Guarantor.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting either Loan Party 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) purports to affect the legality, validity or enforceability of this Amendment, the Guaranty or any other Loan Document, as to amended hereby, or the enforcement consummation of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)the transactions contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (Maxtor 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 and, where 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) 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 Agreement, the Note, 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 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 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 law, regulation (including, without limitation, Regulations U and X of the Borrower is a party or by which any Board 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 Governors of the BorrowerFederal Reserve System) or contractual restriction binding on or affecting the Loan Parties.
(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 either Loan Party of this Agreement Agreement, the Notes or any Notes other Loan Document to which it is or is to be delivered by it, or for the consummation of the transactions contemplated hereby and therebya party, except for such those 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 effecteffect except that the Guarantor is required to report to its designated foreign exchange trading bank any payment to be made under any Guaranty at the time of making each such payment.
(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 the Borrowereach Loan 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 the Borrower each Loan Party thereto enforceable against the Borrower each such Loan Party in accordance with their respective terms terms.
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 28, 1996, and the related Consolidation statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Coopers and Lybr▇▇▇, ▇▇dependent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at December 28, 1996, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at December 28, 1996, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its 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 generally accepted accounting principles consistently applied. Since December 28, 1996, there has been no Material Adverse Change, except for those listed on Schedule 4.01(e) hereto.
(f) The balance sheet of the Guarantor and its Subsidiaries as at December 31, 1996, and the related statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Samil Accounting Corporation, a member firm of Price Waterhouse, independent public accountants, copies of which have been furnished to each Lender, fairly present the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the periods ended on such date, all in accordance with generally accepted financial accounting standards in the Republic of Korea consistently applied. Since December 31, 1996, 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 either Loan Party 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) 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.
(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 the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan.
(j) 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 such Plan since such date.
(k) Neither Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan that has had or is reasonably likely to have a Material Adverse Effect.
(l) Neither Loan Party 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.
(m) Except as set forth in the financial statements referred to in this Section 4.01 and in Section 5.01(i), the Loan Parties and their respective Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106.
(n) The operations and properties of the Borrower and each of its Subsidiaries comply with all applicable Environmental Laws and Environmental Permits, except such non-compliance that would not have a Material Adverse Effect, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, and no circumstances exist that could be 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 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.
(o) None of the properties currently or, to the enforcement best of remediesits knowledge, formerly owned or operated by the Borrower or any of its Subsidiaries is listed or proposed for listing on the National Priorities List under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("NPL") or on the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency ("CERCLIS") or any analogous foreign, state or local list or, to the best knowledge of the Borrower, is adjacent to any such property; 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 by the Borrower or any of its Subsidiaries or, to the best of its knowledge ,by any Person, on any property currently or, to the best of its knowledge, formerly owned or operated by the Borrower or any of its Subsidiaries; there is no friable asbestos or, other than as is being maintained in accordance with applicable bankruptcyEnvironmental Laws, reorganizationother asbestos or asbestos-containing material on any property currently owned or operated by the Borrower or any of its Subsidiaries; and Hazardous Materials have not been released, insolvencydischarged or disposed of by the Borrower or any of its Subsidiaries or, moratorium to the best of its knowledge, by any other Person, on any property currently or, to the best of its knowledge, formerly owned or operated by the Borrower or any of its Subsidiaries or any adjoining property.
(p) Neither the Borrower nor any of its Subsidiaries is undertaking, and similar laws affecting creditors’ rights generally)has not 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; 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 the Borrower or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to the Borrower or any of its Subsidiaries.
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 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 In order to induce the Lender to advance the proceeds of the Loan, the Borrower hereby represents and warrants to the 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 its respective jurisdiction of its organization, except, organization as described in the case of any such Subsidiary, where the failure so preamble to qualify would not result in a Material Adverse Effectthis Agreement, (ii) is duly qualified to do business and is in good standing in every other jurisdiction wherein the nature of its business or the character of its properties makes such qualification necessary, and (iii) has the all 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 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 presently proposed to be a party and to borrow under this Agreementconducted.
(b) Each Borrower has full power and authority to execute and deliver the Loan Documents to which it is a party and to incur and perform its obligations hereunder and thereunder. The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party and any Notes to be delivered by it and the consummation of the all other documents and transactions contemplated hereby or thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder organizational action, and do will not (i) contravene violate any provision of law or of the charter or other constitutive documents articles of formation of Borrower, the operating agreement or by-laws of Borrower, or other organizational documents of the Borrower or result in the breach of, constitute a default under, or create or give rise to any Subsidiary of the BorrowerLien under, (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 the Borrower or any of their its 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 . The Loan Documents to any property or assets now owned or hereafter acquired by which 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 a party 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 an appropriate officer of the Borrower who is authorized by and specified in the Borrower’s bylaws, charter or other corporate documents to execute and so deliver such agreements. The Borrower is not in violation of or subject to any contingent liability on account of any statute, law, rule, ordinance, order, writ, injunction or decree to the extent that such violation or contingent liability (either alone or in combination with other such violations or contingent liabilities) would result in a material adverse effect on the condition (financial or otherwise) of the Business Assets of the Borrower. This Agreement isAs used herein, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of “material adverse effect” means a violation or contingent liability (either alone or in combination with other such violations or contingent liabilities) that would result in a cost or loss to 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)$50,000 or more.
Appears in 1 contract
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. 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 represents and warrants to the Bank, with full knowledge that the Bank is relying on the following representations and warranties in executing this Amendment, as follows:
(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 to execute, deliver and perform its obligations under this Agreement Amendment, and any Notes all corporate action on the part of the Borrower requisite for the due execution, delivery and each other agreement or instrument contemplated thereby to which it is or is to be a party performance of this Amendment has been duly and to borrow under this Agreementeffectively taken.
(b) The execution, delivery and performance Agreement as amended by the Borrower of this Agreement and any Notes to be delivered by it 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, Loan Documents and do not (i) contravene the charter or each and every 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 document executed and delivered in connection with this Amendment to which the Borrower or any Subsidiary of its Subsidiaries is a party constitute the legal, valid and binding obligations of the Borrower and any of its Subsidiaries to the extent it is a party thereto, enforceable against such Person in accordance with their respective terms.
(c) This Amendment does not and will not violate any provisions of the articles or by which any certificate of them incorporation or bylaws of the Borrower, or any of their property is or may be bound or affectedcontract, (iii) conflict withagreement, 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) requirement of any Governmental Authority to which the Borrower is subject. The Borrower's execution of this Amendment will not 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 properties of the Borrower, other than those permitted by the Agreement and this Amendment.
(cd) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due The Borrower's execution, delivery and performance of this Amendment do not require the consent or approval of any other Person, including, without limitation, any regulatory authority or governmental body of the United States of America or any state thereof or any political subdivision of the United States of America or any state thereof.
(e) The Borrower has performed and complied with all agreements and conditions contained in the Agreement required to be performed or complied with by the Borrower prior to or at the time of delivery 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 effectAmendment.
(df) This Agreement has beenAfter giving effect to this Amendment, no Default or Event of Default exists 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 all of the Borrower enforceable against representations and warranties contained in the Agreement and all instruments and documents executed pursuant thereto or contemplated thereby are true and correct in all material respects on and as of this date.
(g) Nothing in this Section 4 of this Amendment is intended to amend any of the representations or warranties contained in the Agreement or of the Loan Documents to which the Borrower in accordance with their respective terms (subject, as to or any of the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)Subsidiaries is a party.
Appears in 1 contract
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
Appears in 1 contract
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.
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) It is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction Commonwealth 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) Massachusetts and has the all requisite power and authority authority, corporate or otherwise, to conduct its business, to own its property and assets properties and to carry on its business as now conductedexecute and deliver, except, in the case and to perform all 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 under, this Agreement and any Agreement, the Notes and each the other agreement or instrument contemplated thereby Loan Documents to which it is or is to be a party party. The Borrower is duly qualified to do business in, and to borrow under this Agreementis in 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 necessary.
(b) The execution, delivery and performance by the Borrower of this Agreement Agreement, the Notes and any Notes other Loan Documents to which it is or is to be delivered by it and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powers, a party have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not and will not require any consent or approval of its stockholders which has not been obtained, violate any provision of any law (i) contravene including, without limitation, the Public Utility Holding Company Act of 1935), rule, regulation (including, without limitation, Regulations U and X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to the Borrower or of the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrower, (ii) violate any law or order result in a breach of any Governmental Authority or any provision of 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 withor result in, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenturerequire, agreement or other instrument or (iv) result in 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 pursuant to the Collateral Assignments) upon or with respect to any property or assets properties now owned or hereafter acquired by the Borrower Borrower; and it is not in default in any material respect under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any Subsidiary of the Borrowersuch indenture, agreement, lease or instrument.
(c) No authorizationAll authorizations, approval consents, approvals, licenses, exemptions from or other action byfilings or registrations with any court or governmental department, and no notice commission, board, bureau, agency or instrumentality which are or will be necessary to or filing with, any Governmental Authority is required for the due valid execution, delivery and or performance by (i) the Borrower of this Agreement Agreement, the Notes, the other Loan Documents to which it is or any Notes is to be delivered by it, or for a party and the consummation Ancillary Agreements to which it is a party and (ii) each of NEP and ▇▇▇▇ of the transactions contemplated hereby and therebyAncillary Agreements to which it is a party, except for such authorizations, approvals, actions, notices or filings that have been duly obtained or made or obtained (including, without limitation, the 1978 SEC Order, the 1985 SEC Order, the 1995 SEC Order and the FERC Settlement), and are in full force and effect.
(d) This Agreement has beenconstitutes, and any the Notes and each of the other Loan Documents to which it is or is to be delivered by it a party when delivered hereunder will have beenconstitute, duly executed and delivered by the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms.
(e) The Fuel Purchase Contract, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as consented to by the Banks, and, if and so long as the CMA Conversion Date shall not have occurred, is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no default under the Fuel Purchase Contract by any party thereto.
(f) The Capital Funds Agreement, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as consented to by the Banks, and, if and so long as the CMA Conversion Date shall not have occurred, is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no default under the Capital Funds Agreement by any party thereto.
(g) The Loan Agreement, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as consented to by the Banks, and, if and so long as the CMA Conversion Date shall not have occurred, is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no default under the Loan Agreement by any party thereto.
(h) The Partnership Agreement, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, and has not been, and (on or before the date of the initial Borrowing hereunder) will not be, amended or otherwise modified (except that the Borrower may amend, modify, renew or extend the term of the Partnership Agreement, provided that the terms of the Partnership Agreement as so amended, modified, renewed or extended, giving due consideration to the standards and practices of the oil and gas industry, are no less favorable to the Borrower than the Partnership Agreement as in effect on the date hereof). The Partnership Agreement is, and will remain, in full force and effect, subject to termination in accordance with its terms. The Partnership Agreement is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no material default under the Partnership Agreement, or under any other agreement evidencing a Hydrocarbon Property Venture, by any party thereto.
(i) The Capital Maintenance Agreement, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as consented to by the Banks, and is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no default under the Capital Maintenance Agreement by any party thereto.
(j) Except as outstanding on the date hereof under the Existing Agreement, there are no mortgages, deeds of trust, pledges, liens, security interests or other charges or encumbrances upon or with respect to any property or other interests of the Borrower other than as permitted under Section 5.02(a) hereof.
(k) Each of the orders referred to in Section 3.01(f), true and correct copies of which have been furnished to the Banks, has been duly and properly issued, has not been amended or otherwise modified except by orders referred to in Section 3.01(f), is in full force and effect in accordance with its terms.
(l) The NEP Assignment does now, and will at all times prior to the CMA Conversion Date, constitute a valid and perfected first priority security interest in and to the Collateral described therein, enforceable against all third parties in all jurisdictions, securing the payment of all obligations purported to be secured thereby; and all action required to perfect fully the security interest so constituted has been taken and completed.
(m) The ▇▇▇▇ Assignment does now, and will at all times prior to the CMA Conversion Date, constitute a valid and perfected first priority security interest in and to the Collateral described therein, enforceable against all third parties in all jurisdictions, securing the payment of all obligations purported to be secured thereby; and all action required to perfect fully the security interest so constituted has been taken and completed.
(n) The CMA Assignment does now, and will at all time hereafter, constitute a valid and perfected first priority security interest in and to the Collateral described therein, enforceable against all third parties in all jurisdictions, securing the payment of all obligations purported to be secured thereby; all action required to perfect fully the security interest so constituted has been taken and completed.
(o) The NEP Acknowledgment, when delivered hereunder, will have been duly authorized, executed and delivered by NEP, will not have been amended or otherwise modified and will at all times prior to the CMA Conversion Date, constitute the legal, valid and binding obligation of NEP enforceable against it in accordance with its terms.
(p) The ▇▇▇▇ Acknowledgment, when delivered hereunder, will have been duly authorized, executed and delivered by ▇▇▇▇, will not have been amended or otherwise modified and will constitute the legal, valid and binding obligation of ▇▇▇▇ enforceable against it in accordance with its terms.
(q) The balance sheets of the Borrower, NEP and ▇▇▇▇ as at December 31, 1994 and the related statements of income and retained earnings for the fiscal years then ended, each certified by Coopers & ▇▇▇▇▇▇▇, independent public accountants, copies of which have been furnished to the Banks, fairly present the financial condition, respectively, of the Borrower, NEP and ▇▇▇▇ as at such dates and the results of the operations, respectively, of the Borrower, NEP and ▇▇▇▇ for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 1994 there has been no material adverse change in such financial condition or operations of the Borrower, NEP or ▇▇▇▇.
(r) The Borrower does not have any Plans. No Termination Event has occurred, or is reasonably expected to occur, and no Prohibited Transaction has occurred, with respect to any Plans of the Borrower or any ERISA Affiliate of the Borrower.
(s) There are no actions, suits or proceedings pending or, to its knowledge, threatened against or affecting the Borrower or its properties before any court or governmental department, commission, board, bureau, agency or instrumentality which, if determined adversely, would have a material adverse effect on the financial condition or operations of the Borrower. Except as disclosed in the financial statements referred to in paragraph (q) above, there are no actions, suits or proceedings pending or, to its knowledge, threatened against or affecting NEP, ▇▇▇▇ or their respective terms (subjectproperties before any court or governmental department, commission, board, bureau, agency or instrumentality which, if determined adversely, would have an adverse effect on the ability of NEP or ▇▇▇▇, as the case may be, to perform and observe its Acknowledgment, the Capital Funds Agreement, the Loan Agreement, the Fuel Purchase Contract or the Capital Maintenance Agreement. The Borrower has no material contingent liabilities, material liabilities for taxes, material unusual forward or long-term commitments or material unrealized or unanticipated losses from any unfavorable commitments, except as reflected in the financial statements referred to in paragraph (q) above.
(t) 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 of the Board of Governors of the Federal Reserve System) and no part of the proceeds of any Advance will be used to purchase or carry margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(u) No proceeds of any Advance will be used to acquire any security in any transaction which is subject to Section 13 and 14 of the Securities Exchange Act of 1934.
(v) Neither the business nor the properties of the Borrower or any Hydrocarbon Property Venture 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), materially and adversely affecting the business or properties or the operations of the Borrower or such Hydrocarbon Property Venture, as the case may be, taken as a whole.
(w) The Borrower has 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 provided adequate reserves for payment thereof, except that the Borrower may not have paid certain taxes being contested by it in good faith and by proper proceedings and for which proper reserves have been established.
(x) No information, exhibit or report furnished by the Borrower to the enforcement Agent or to the Banks in connection with the negotiation of remediesthis Agreement or pursuant to or in connection with the Loan Documents, including, without limitation, the Information Memorandum, contained any material misstatement of fact or omitted to applicable bankruptcystate a material fact or any fact necessary to make the statements contained therein, reorganizationin light of the circumstances under which they were made, insolvencynot misleading.
(y) All Hydrocarbon Properties (other than Post-1983 Hydrocarbon Properties) are entitled to the benefits of the Fuel Purchase Contract.
(z) The Borrower is not an "investment company" within the meaning ascribed to that term in the Investment Company Act of 1940, moratorium and similar laws affecting creditors’ rights generally)as amended.
Appears in 1 contract
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, 2015 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, 2016 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 Senior 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 St. Jude 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 and information of a general economic or industry nature) (but only, with respect to written information related to St. Jude and its Subsidiaries prior to the Closing Date, and to Alere prior to the closing date of the Alere Acquisition, 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 St. Jude 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 that have been furnished by the Borrower to any Lenders or the Administrative Agent in connection with the St. Jude 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 are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, (ii) the Projections, by their nature, are inherently uncertain and no assurances are being given that the results reflected in the projections will be achieved and (iii) actual results may differ from the Projections 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.
(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 1 contract
Representations and Warranties of the Borrower. The Each Borrower hereby represents and warrants as follows:
(a) Each In the case of the Borrower and its Subsidiaries (i) AYE, it is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationMaryland, except, in the case of any such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, and (ii) has AESC, it is a limited liability company, duly organized, validly existing and in good standing under 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 laws 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 AgreementState of Delaware.
(b) The Its 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, are within the Borrower’s corporate its powers, have been duly authorized by all necessary corporate action and, if required, stockholder action, and do not and will not (i) contravene the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary of the Borrowerits 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 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 such payment to be made under, any material contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting it or any of its properties or (iv) result in or require the creation or imposition of any Lien upon or with respect to any property of its Assets, except where, in the case of clauses (i) through (iv), violation of any such Constituent Documents, law, rule, regulation, order, writ, judgment, injunction, decree, 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 other instrument, or creation or imposition of the Borrowersuch Lien, could 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 is required for the due execution, delivery and or performance by the Borrower it 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 effectAmendment.
(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 Borrowerit. This Agreement is, and any Notes when delivered hereunder will be, the Amendment is its legal, valid and binding obligation of the Borrower obligations, enforceable against the Borrower it in accordance with their respective terms (subjectits terms, as except to the extent limited by any 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 principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(e) No Default has occurred and is continuing.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents to the Administrative Agent and warrants as followsthe Lenders that:
(a) Each No Default or Event of Default has occurred and is continuing on and as of the Second Amendment Effective Date. The representations and warranties of the Borrower and its Subsidiaries (i) is duly organized, validly existing and each other Loan Party contained in good standing under the laws Article V of the jurisdiction Credit Agreement or any other Loan Document are true and correct in all material respects on and as of its organizationthe Second Amendment Effective Date, exceptexcept to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2(a), the case representations and warranties contained in Sections 5.05(a) and (b) of any the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Credit Agreement, respectively; provided that, to the extent such Subsidiary, where the failure so to qualify would not result in a representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, (ii) has the requisite power such representations and authority to own its property warranties shall be true and assets and to carry on its business as now conducted, except, correct 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 Agreementall respects.
(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 Second Amendment is within the Borrower’s corporate or other organizational powers, have has been duly authorized by all necessary corporate action and, if required, stockholder or other organizational action, and do does not and will not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of, or require any payment to be made under (i) contravene any Contractual Obligation to which the charter Borrower is a party or other constitutive documents affecting the Borrower or by-laws the properties of the Borrower or any Subsidiary of the Borrower, its Subsidiaries or (ii) violate any law order, injunction, writ or order 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 or any of their its property is or may be bound or affected, subject; (iiic) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under violate any such indenture, agreement or other instrument Law; or (ivd) result in the creation or imposition of any Lien upon or other than a Lien expressly permitted under Section 7.01 of the Credit Agreement, except with respect to any property conflict, breach or assets now owned contravention or hereafter acquired by payment referred to in clause (b)(i), to the Borrower extent that such conflict, breach or any Subsidiary of the Borrowercontravention or payment could not reasonably be expected to have a Material Adverse Effect.
(c) No authorization, approval The Borrower has all requisite corporate or other action byorganization power and authority and all requisite governmental licenses, 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, approvalsconsents and approvals to execute, actions, notices or filings that have deliver and perform its obligations under this Second Amendment. This Second 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, the constitutes a legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.
(subjectd) As of the Second Amendment Effective Date, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium information included in the Beneficial Ownership Certification is true and similar laws affecting creditors’ rights generally)correct in all respects.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows, which representations and warranties shall be deemed repeated on each day during the Term:
(a) Each of the The Borrower and its Subsidiaries (i) is duly organized, an exempted company incorporated with limited liability validly existing and in good standing under the laws of the jurisdiction of its organizationCayman Islands, 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 duly qualified to do business business, and is in good standing, 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 nature 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 business requires it is or is to be a party and to borrow under this Agreementso qualified.
(b) The execution, delivery and performance by the Borrower of this Agreement the Transaction Documents to which it is a party and any Notes the other documents to be delivered by it and hereunder, including the consummation Borrower’s use of the transactions contemplated thereby proceeds of the Loans, (i) are within the Borrower’s corporate powers, (ii) have been duly authorized by all necessary corporate action and, if required, stockholder action, and (iii) do not contravene (i1) contravene the charter Borrower’s Memorandum and Articles of Association, (2) any law, rule or other constitutive documents or by-laws of the Borrower or any Subsidiary of regulation applicable to the Borrower, (ii3) violate any law contractual restriction binding on or order of any Governmental Authority or any provision of any indenture or other material agreement or instrument to which affecting the Borrower or its property or (4) any Subsidiary of order, writ, judgment, award, injunction or decree binding on or affecting the Borrower is a party or by which any of them or any of their property is or may be bound or affectedits property, (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 and (iv) do not result in or require the creation or imposition of any Lien lien, security interest or other charge or encumbrance upon or with respect to any property or assets now owned or hereafter acquired by of its properties (except for the interest created pursuant to this Agreement). Each of the Transaction Documents to which the Borrower or any Subsidiary of is a party has been duly executed and delivered by 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 is required for the due execution, delivery and performance by the Borrower of this Agreement the Transaction Documents to which it is a party or any Notes other document to be delivered by it, or for the consummation of the transactions contemplated hereby and therebythereunder, except for such authorizations, approvals, actions, notices or filings that have been made or obtained the filing of UCC financing statements which are referred to herein and are in full force and effecttherein.
(d) This Agreement has been, and any Notes Each of the Transaction Documents to be delivered by which 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, is a party constitutes the legal, valid and binding obligation 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 and or other similar laws affecting creditors’ the rights generallyof creditors generally and general equitable principles (whether considered in a proceeding at law or in equity).
(e) Since its date of formation, August 11, 2004, there has been no material adverse change in the business, operations, property, prospects or financial or other condition of the Borrower.
(f) Except as set forth in Schedule V or as otherwise disclosed by the Parent in its publicly available SEC filings, there is no pending or threatened action, investigation or proceeding affecting the Borrower, the Parent or any of their Subsidiaries before any court, governmental agency or arbitrator which if determined adversely to any of them, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(g) No proceeds of any Loans will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(h) The Borrower is the legal and beneficial owner of the Transferred Assets and Related Security free and clear of any Adverse Claim (other than the security interests therein granted under the Receivables Financing Agreement subject to the RFA Intercreditor Agreement). The Administrative Agent for the benefit of the Lenders has a valid and perfected security interest in each Transferred Asset now existing or hereafter arising and in the Related Security and Collections with respect thereto, second only in priority to the security interests granted under the Receivables Financing Agreement that are the subject of the RFA Intercreditor Agreement. No effective financing statement or other instrument similar in effect covering any Collateral is on file in any recording office, except (i) those relating to the Credit Agreement and the Indentures, all of which the Borrower represents relate to security interests that are subject to the Senior Collateral Intercreditor Agreement, (ii) those relating to the Receivables Financing Agreement, all of which the Borrower represents relate to security interests that are subject to the RFA Intercreditor Agreement, (iii) those filed in favor of the Administrative Agent relating to this Agreement and (iv) those filed pursuant to the Purchase Agreements. Each Transferred Asset characterized in any Borrower Report or other written statement made by or on behalf of the Borrower as an Eligible Receivable or Eligible Participation Interest, or as included in the Borrowing Base is, as of the date of such Borrower Report or other statement (or, if applicable, as of a date certain specified in such report), an Eligible Receivable or Eligible Participation Interest, as properly included in the Borrowing Base.
(i) Each Borrower Report, Interim Report and Daily Report (if prepared by the Borrower or one of its Affiliates, or to the extent that information contained therein is supplied by the Borrower or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Borrower to the Administrative Agent or the Lenders in connection with and before or after the date of this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent or the Lenders, as the case may be, at such time) as of the date so furnished (or, if applicable, as of a date certain specified in such report), and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(j) The principal place of business and chief executive office of the Borrower and the office where the Borrower keeps its records concerning the Transferred Assets are located at the address or addresses referred to in Section 5.01(b).
(k) The names and addresses of all the Deposit Banks and Account Banks, together with the post office boxes and account numbers of the Lock-Boxes, Deposit Accounts and Governmental Entity Receivables Accounts, as the case may be, of the Borrower at such banks, are as specified in Schedule I hereto, as such Schedule I may be updated from time to time pursuant to Section 5.01(g). The Lock-Boxes, Deposit Accounts and Governmental Entity Receivables Accounts, as the case may be, are the only post office boxes and bank accounts into which Collections of Receivables and Participated Receivables are deposited or remitted. The Borrower has delivered to the Administrative Agent a fully executed Deposit Account Agreement or Governmental Entity Receivables Agreement with respect to each Deposit Account, Governmental Entity Receivables Account and any associated Lock-Boxes.
(l) [Intentionally Omitted].
(m) The Borrower is not known by and does not use any tradename or doing-business-as name.
(n) The Borrower has no Subsidiaries.
(i) The fair value of the property of the Borrower is greater than the total amount of liabilities, including contingent liabilities, of the Borrower, (ii) the present fair salable value of the assets of the Borrower is not less than the amount that will be required to pay all probable liabilities of the Borrower on its debts as they become absolute and matured, (iii) the Borrower does not intend to, and does not believe that it will, incur debts or liabilities beyond the Borrower’s abilities to pay such debts and liabilities as they mature and (iv) the Borrower is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which the Borrower’s property would constitute unreasonably small capital.
(p) With respect to each Transferred Asset, the Borrower (i) shall have received such Transferred Asset as a contribution to the capital of the Borrower by Cayman SPE I, (ii) shall have purchased such Transferred Asset from Cayman SPE I in exchange for payment (made by the Borrower to Cayman SPE I in accordance with the provisions of the Tertiary Purchase Agreement) of cash or (iii) shall have received such Transferred Asset partially as a capital contribution and partially for payment in cash, in each case in an amount which constitutes fair consideration and reasonably equivalent value. Each such sale referred to in the preceding sentence shall not have been made for or on account of an antecedent debt owed by Cayman SPE I to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
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 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 or permitted 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 or 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 its respective terms (subjectterms, 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, 2014, 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, 2014, there has been no Material Adverse Effect, or material adverse change in the facts and information regarding such entities as represented to the Closing 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 In order to induce Lenders to enter into this Amendment and to amend the Credit Agreement in the manner provided herein, the Borrower represents and warrants as followsto each Lender 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 and the consummation of the transactions contemplated thereby Loan Documents, as amended hereby, to which it is 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 Borrowerbylaws, (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 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 properties, the effect of which would have a Material Adverse Effect, or may be bound or affected, (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 (iv) result in affecting the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by the Borrower Borrower, or any Subsidiary of the Borrowerits Subsidiaries or any of their properties except where such conflict would not have a Material Adverse Effect.
(cb) 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 to be delivered by it, or for the consummation of the transactions contemplated hereby and therebyLoan Documents, except for such authorizationsas amended hereby, approvals, actions, notices or filings that have been made or obtained and are in full force and effectto which it is a party.
(dc) 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 is, Amendment and any Notes when delivered hereunder will be, the legal, valid and binding obligation each of the Borrower enforceable against the Borrower in accordance with their respective terms (subjectother Loan Documents, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).amended
Appears in 1 contract
Sources: Credit Agreement (Powertel Inc /De/)
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 or partnership duly organized, validly existing and in good standing (except where the failure of one or more Loan Parties, other than the Borrower and its Material Subsidiaries, to be in good standing could not reasonably be expected to result in a Material Adverse Change) under the laws of the jurisdiction in which it is organized and is duly qualified to do business in each jurisdiction where the character of its organization, except, in properties or the case nature of any its activities makes such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, qualification necessary.
(iib) Each Loan Party has the requisite corporate or partnership power and authority to own its property and assets and (i) to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so being conducted and as proposed to qualify would not result in a Material Adverse Effectbe conducted by it, (iiiii) 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 this Amendment and the Credit Agreement, as amended hereby, and (iii) to take all action necessary to consummate the transactions contemplated under this Agreement Amendment 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 the Credit Agreement, as amended hereby.
(bc) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes to be delivered by it Amendment, the Credit Agreement, as amended hereby, and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powersConsent, as applicable, have been duly authorized by all necessary corporate action andof its board of directors (or, if requiredin the case of a partnership, stockholder actionof its governing authority), and do not contravene (i) contravene its certificate or articles of incorporation (or, in the charter case of a partnership, governing agreements) 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 indenture, lease or any provision of any indenture written agreement binding on 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, affecting it and do not 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 (other than pursuant to the Collateral Documents) upon or with respect to any of its property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerassets.
(cd) No authorization, authorization or 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 or any Notes to be delivered by itAmendment, the Credit Agreement, as amended hereby, or for the consummation of the transactions contemplated hereby and therebyConsent, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectas applicable.
(de) This Agreement has been, Amendment and any Notes to be delivered by it when delivered hereunder will the Consent have been, been duly executed and delivered by the Borrowerrespective Loan Party. This Agreement isAmendment, the Credit Agreement, as amended hereby, and any Notes when delivered hereunder will be, the Consent are legal, valid and binding obligation obligations of the Borrower respective Loan Party, enforceable against the Borrower respective Loan Party in accordance with their respective terms (subjectterms, as subject to laws generally affecting the enforcement of remediescreditors' rights.
(f) There is no pending or overtly threatened action or proceeding affecting any Loan Party before any court, governmental agency or arbitrator which would, if adversely determined, result in a Material Adverse Change or which relates to applicable bankruptcyor could reasonably be expected to affect the legality, reorganizationvalidity or enforceability of this Amendment, insolvencythe Credit Agreement, moratorium as amended hereby, or the Consent or the consummation of any of the transactions contemplated hereby.
(g) The execution, delivery and similar laws affecting creditors’ rights generally)performance of this Amendment, the Consent and the Credit Agreement, as amended hereby, do not and will not (i) conflict with, result in a breach of, or constitute (with or without notice or the lapse of time or both) a default under, any instrument, lease, indenture, agreement or other contractual obligation issued by any Loan Party or enforceable against it or any of its property or assets, except under immaterial agreements for supplies or services which are readily replaceable without any adverse effect on such Loan Party or its business or (ii) require any approval of its stockholders.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Integrated Health Services Inc)
Representations and Warranties of the Borrower. (a) The Borrower hereby represents and warrants to the Bank 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) The Borrower has the requisite power power, and authority has taken all necessary action 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 authorize the Borrower, has the corporate power to execute and authority deliver this Amendment and to execute, deliver and perform its duties and obligations under the Agreement, as amended by 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 Amendment in accordance with their respective terms. This Amendment has 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 a duly authorized officer of the Borrower. This Agreement is, and any Notes when delivered hereunder will be, the this Amendment is a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms its terms, except as such enforceability may be limited by (subject, as to A) the enforcement effect of remedies, to any applicable bankruptcy, insolvency, reorganization, insolvency, moratorium and or similar laws affecting creditors’ rights generallygenerally and (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(ii) The execution and delivery of this Amendment and the performance of this Amendment, as amended hereunder do not and will not (A) contravene the Borrower’s by-laws or articles of incorporation, (B) require any governmental approval or any consent, waiver or other approval that has not been obtained already or (C) violate, conflict with, result in a material breach of, or constitute a material default under, (1) any contractual restriction, lease, instrument, agreement, indenture or mortgage to which the Borrower or any of its properties may be bound or (2) any law applicable to the Borrower.
(iii) There are not, to the best of the Borrower’s knowledge, in any court, before any arbitrator of any kind or before or by any governmental or non-governmental body, any actions, suits or proceedings, pending or threatened against or in any other way relating to or affecting (A) the Borrower or any of its properties or (B) this Amendment, as amended hereunder, except actions, suits or proceedings, that, if adversely determined, would not, singly or in the aggregate, have a materially adverse effect on the financial condition of the Borrower or this Amendment.
(b) The Borrower hereby represents and warrants for the benefit of the Bank that no Event of Default has occurred or is continuing under the Agreement.
Appears in 1 contract
Sources: Credit Agreement (Talbots Inc)
Representations and Warranties of the Borrower. The In order to induce the Lenders and the Administrative Agent to enter into this Amendment No. 2, the Borrower represents and warrants as followsto each Lender and the 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. 2 and the consummation of Loan Agreement as amended by this Amendment No. 2 (the transactions contemplated thereby “Amended Loan Agreement”) are within the Borrower’s corporate powers, authority of the Borrower and have been duly authorized by all necessary corporate action and, if required, stockholder actionproceedings on the part of the Borrower and any general partner or other controlling Person thereof;
(ii) The execution and delivery of, and the performance of the obligations required to be performed by Borrower under, this Amendment No. 2 and the Amended Loan Agreement ) (a) do not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which the Borrower is subject or any judgment, order, writ, injunction, license or permit applicable to the Borrower, (ib) contravene do not conflict with any provision of the agreement of limited partnership, any certificate of limited partnership, the charter or other constitutive documents or by-laws of the Borrower or any Subsidiary general partner or other controlling Person thereof, (c) do not contravene any provisions of, or constitute a default, Default or Event of Default hereunder or a failure to comply with any term, condition or provision of, any other agreement, instrument, judgment, order, decree, permit, license or undertaking binding upon or applicable to the Borrower or any of the Borrower’s properties (except for any such failure to comply under any such other agreement, instrument, judgment, order, decree, permit, license, or undertaking as would not materially and adversely affect the condition (financial or otherwise), properties, business or results of operations of the Borrower, the Operating Subsidiaries or any Guarantor) or result in the creation of any mortgage, pledge, security interest, lien, encumbrance or charge upon any of the properties or assets of the Borrower, the Operating Subsidiaries or any Guarantor, and (iid) violate any law do not require (i) the approval or order consent of any Governmental Authority other than those already obtained, or (ii) filing with any provision of any indenture or Governmental Authority, other material agreement or instrument to than filings which will be made with the Borrower or any Subsidiary of the Borrower is a party or SEC when and as required by which any of them or any of their property is or may be bound or affected, law;
(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 Each of this Amendment No. 2 and the Amended Loan 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 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 only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium and similar or other laws relating to or affecting generally the enforcement of creditors’ rights generallyand to the fact that the availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought;
(iv) This Amendment No. 2 has been duly executed and delivered by the Borrower;
(v) The representations and warranties of the Borrower contained in Section 6 of the Loan 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 date (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
(vi) No Default or Event of Default has occurred and is continuing.
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.
Third 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) 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 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 In order to induce the Lender to advance the proceeds of the Loan, the Borrower hereby represents and warrants to the 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 its respective jurisdiction of its organization, except, organization as described in the case of any such Subsidiary, where the failure so preamble to qualify would not result in a Material Adverse Effectthis Agreement, (ii) is duly qualified to do business and is in good standing in every other jurisdiction wherein the nature of its business or the character of its properties makes such qualification necessary, and (iii) has the all 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 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 presently proposed to be a party and to borrow under this Agreementconducted.
(b) Each Borrower has full power and authority to execute and deliver the Loan Documents to which it is a party and to incur and perform its obligations hereunder and thereunder. The execution, delivery and performance by the Borrower of this Agreement the Loan Documents to which it is a party and any Notes to be delivered by it and the consummation of the all other documents and transactions contemplated hereby or thereby are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action and, if required, stockholder organizational action, and do will not (i) contravene violate any provision of law or of the charter or other constitutive documents articles of formation of Borrower, the operating agreement or by-laws of Borrower, or other organizational documents of the Borrower or result in the breach of, constitute a default under, or create or give rise to any Subsidiary of the BorrowerLien under, (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 the Borrower or any of their property is or its Property 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 . The Loan Documents to any property or assets now owned or hereafter acquired by which 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 a party 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 an appropriate officer of the Borrower who is authorized by and specified in the Borrower’s bylaws, charter or other corporate documents to execute and so deliver such agreements. The Borrower is not in violation of or subject to any contingent liability on account of any statute, law, rule, ordinance, order, writ, injunction or decree to the extent that such violation or contingent liability (either alone or in combination with other such violations or contingent liabilities) would result in a material adverse effect on the condition (financial or otherwise) of the Business Assets of the Borrower. This Agreement isAs used herein, and any Notes when delivered hereunder will be, the legal, valid and binding obligation of “material adverse effect” means a violation or contingent liability (either alone or in combination with other such violations or contingent liabilities) that would result in a cost or loss to 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)$50,000 or more.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) 8.1. 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.
8.2. 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) 8.3. 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 the consummation of the transactions contemplated thereby each other Loan Document 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) 8.4. 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.
8.5. 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 the Parent Guarantors each represent and warrant as follows:
(a) Each of the Borrower and its Subsidiaries (i) such entity 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 and waived 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 and waived 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 Loan Documents, as amended and therebywaived hereby, except for such authorizations, 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 and waived 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 and waived 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 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;
(subject, as to the enforcement of remediesd) There is no action or proceeding pending or, to applicable bankruptcyits knowledge, reorganizationthreatened to which it is or will be a party, insolvencyeither in its individual capacity or as the Owner Trustee, moratorium before any Governmental Authority that, if adversely determined, would materially and similar laws affecting creditors’ rights generally).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;
Appears in 1 contract
Sources: Participation Agreement (Sunrise Assisted Living 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: 19
(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, the Agency Agreement or its interest in any Property or any 20 portion thereof, 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 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 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;
(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 in its individual capacity; and
(m) The Owner Trustee, in its trust capacity, is a party to no documents, instruments or agreements other than the Operative Agreements to which it is a party and any other documents delivered by the Owner Trustee in connection with the Operative Agreements.
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 Loan Party (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, except, (ii) is duly qualified to do business in every jurisdiction wherein the case conduct of any its business or the ownership of its properties is such Subsidiary, as to require such qualification (except where the failure to so to qualify would not result in have a Material Adverse Effect, ) and (iiiii) has the all 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, 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 of the Loan Documents to which it is or is to be a party and to borrow under this Agreementconsummate the transactions contemplated by the Loan Documents.
(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 by the Loan Documents, 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 law, any order of any Governmental Authority court or governmental agency binding on such Loan Party or any provision of any indenture contractual restriction binding on such Loan Party 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 withexcept for the Liens created under the Collateral Documents, 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 upon or with respect to any property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerproperties of such Loan Party.
(c) No authorization, 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, filing or performance by the Borrower each 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 contemplated hereby and therebyby the Loan Documents, except for such authorizations(ii) the grant by each Loan Party of the Liens granted by it pursuant to the Collateral Documents, approvals(iii) the perfection or maintenance of the Liens created under the Collateral Documents or (iv) the exercise by the Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, actionsother than the filing of the financing statements referred to in Section 3.01(f)(ii)(B), notices or filings that which financing statements shall have been made or obtained and are in full force and effectduly filed within 3 days from the date hereof.
(d) This Agreement The Note has been, and each other Loan Document to which any Notes to be delivered by it Loan Party is a party when delivered hereunder will have been, duly executed and delivered by the BorrowerBorrower or such Loan Party, as applicable. This Agreement The Note is, and each other Loan Document to which any Notes Loan Party is a party when delivered hereunder will be, the legal, valid and binding obligation of the Borrower or such Loan Party, as applicable, enforceable against the Borrower or such Loan Party, as applicable, in accordance with their respective terms (subjectits terms, except as to the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of remediescreditors' rights generally.
(e) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party pending or, to applicable bankruptcythe knowledge of the Borrower, reorganizationthreatened before any court, insolvencygovernmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, moratorium validity or enforceability of any Loan Document.
(f) 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), and similar laws affecting creditors’ rights generallyno proceeds of an 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.
(g) The Security Agreement creates a valid and, upon the filing of UCC-1 financing statements with the Secretary of State of Ohio, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations (as defined in the Security Agreement), and all filings and other actions necessary or desirable to perfect and protect such security interest shall have been duly taken within 10 days from the date hereof. 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 under the Loan Documents.
(h) Each Plan is in substantial compliance with ERISA and no ERISA Event has occurred or is reasonably expected to occur. None of the Plans is a multiemployer plan, as defined in Section 4001(a)(3)
Appears in 1 contract
Sources: Credit Agreement (Medplus Inc /Oh/)
Representations and Warranties of the Borrower. The In order to induce the Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders to enter into this Amendment No. 2, the Borrower represents and warrants as followsto the Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders that the following statements are true, correct and complete:
(a) Each of i. 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. 2 and the Credit Agreement as amended by this Amendment No. 2 (the “Amended Agreement” and, together with this Amendment No. 2, the “Amendment Documents”);
ii. the execution 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. 2 and the consummation performance 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 and, if required, stockholder action, on the part of the Borrower;
iii. the execution and delivery of this Amendment No. 2 and the performance of the Amendment Documents (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 Company, the Borrower or any Subsidiary of the Borrower, (ii) violate its Subsidiaries or any law order judgment or order decree 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 affectedAuthority, (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 Company, 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 Company, the Borrower or any of its Subsidiaries, 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 Company, the Borrower or any Subsidiary of the Borrower.its 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 iv. 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 No. 2 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 constitutes a 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 Loan Parties 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 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 this Amendment No. 2.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Gramercy Property Trust 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 hereby represents and warrants as follows:
(a) 4.1. 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.
4.2. 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) 4.3. 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 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 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) 4.4. 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.
4.5. 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 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 (after giving effect to the enforcement Digital Imaging Patent Portfolio Disposition) 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 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, reorganizationneither the use of such Intellectual Property by the Borrower or any of its Subsidiaries, insolvencynor the conduct of their respective businesses, moratorium and similar laws affecting creditors’ infringes, misappropriates or otherwise violates the rights generally)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.
(j) (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.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents to the Administrative Agent and warrants as followsthe Lenders that:
(a) Each No Default or Event of Default has occurred and is continuing on and as of the Effective Date. The representations and warranties of the Borrower and its Subsidiaries (i) is duly organized, validly existing and set forth in good standing under the laws Article III of the jurisdiction of its organization, except, Credit Agreement or in any other Loan Document are true and correct in all material respects (or in all respects if 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) applicable representation or warranty 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 by Material Adverse Effect or materiality) on and (iv) in the case as of the BorrowerEffective Date (except where such representations and warranties expressly relate to an earlier date, has the corporate power in which case such representations and authority to execute, deliver warranties shall have been true 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 Agreementcorrect in all material respects as of such earlier date).
(b) The execution, delivery This Amendment 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 powershereby (a) do not require any Loan Party or any of its Subsidiaries to obtain or make any material consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been duly authorized obtained or made and are in full force and effect or such as will be timely made, (b) will not result in the violation 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 any Loan Party or any Subsidiary of the Borrower, (ii) violate its Subsidiaries of any applicable law or regulation or the Organizational Documents of such Loan Party or any of its Subsidiaries or any 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 affectedAuthority, (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 material indenture, agreement or other instrument binding upon any Loan Party or any of its Subsidiaries or any of their respective assets, or give rise to a right thereunder to require any payment to be made by any Loan Party or any of its Subsidiaries, 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 the Borrower asset of any Loan Party or any Subsidiary of the Borrower.its Subsidiaries; and
(c) No authorization, approval or other action 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 hereby, as applicable, are within the Borrower’s corporate powers 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) duly authorized by all necessary corporate and, if required, shareholder action. 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 is, Borrower and any Notes when delivered hereunder will be, the 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 bankruptcyDebtor Relief Laws and subject to general principles of equity, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally).regardless of whether considered in a proceeding in equity or at law;
Appears in 1 contract
Sources: Credit Agreement (Dean Foods 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 EffectNew Mexico, (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, and (iii) has the all 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 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 . All of the Borrower, outstanding capital stock of the Borrower has the corporate power been validly issued and authority to execute, deliver is fully paid 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 Agreementnon-assessable.
(b) The execution, delivery and performance by the Borrower of this Agreement Agreement, the Notes 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 '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 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 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, 36 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 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 or any Subsidiary properties of the Borrower. Neither the Borrower nor any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could have a material adverse effect on the condition (financial or otherwise), results of operations, assets, business or prospects of the Borrower and its Subsidiaries on a Consolidated basis.
(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 (except any authorization or approval obtained prior to the date hereof, including any authorizations or approvals required by the PUC) is required for the due execution, delivery and performance by the Borrower of this Agreement Agreement, the Notes, or any Notes to be delivered by itother Loan Document, 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 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 Borrower. 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 the Borrower Borrower, enforceable against the Borrower in accordance with their respective terms its terms.
(subjecte) The Consolidated financial statements of the Borrower and its Subsidiaries, including the Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 1997 and the related Consolidated statements of earnings (loss) and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Independent Accountants, copies of which have been furnished to each Lender Party, fairly present 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 applied on a consistent basis. Since December 31, 1997, there has been no material adverse change in the condition (financial or otherwise), results of operations, assets, business or prospects of the Borrower and its Designated Subsidiaries, except as disclosed in the Borrower's 1997 Form 10-K.
(f) The Consolidated balance sheet and related statement of income and cash flow of the Borrower and its Subsidiaries most recently delivered pursuant to Section 5.01(h)(iii) of this Agreement and the accompanying opinion of Independent Accountants delivered together therewith, fairly present the Consolidated financial condition of the Borrower and its Subsidiaries as at the date of such balance sheet and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with GAAP.
(g) No information, exhibit or report furnished by the Borrower to the Administrative Agent or to any Lender Party in connection with the syndication efforts of the Administrative Agent, or the negotiation 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.
(h) There is no action, suit, investigation, litigation or proceeding affecting the Borrower pending or threatened before any court, governmental agency or arbitrator that is likely to have a material adverse effect on the condition (financial or otherwise), results of operations, assets, business or prospects of the Borrower and its Subsidiaries on a Consolidated basis, except as disclosed in the Borrower's 1997 Form 10-K (the "Disclosed Litigation"), and there has been no adverse change in the status, or financial effect on the Borrower and its Subsidiaries on a Consolidated basis, of the Disclosed Litigation.
(i) There is no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator 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.
(j) No proceeds of any Advance will be used to acquire any equity security of a class that is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(k) 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.
(l) Schedule 4.01(m) contains a list of (i) all electric franchises of the Borrower in effect as of the date of the initial Borrowing, (ii) expiration dates for each such franchise, and (iii) the percentage of revenues of all electric utility operations of the Borrower derived from each operating unit with respect to such franchises for the September 1997 billing period. Schedule 4.01(m) also contains similar information with respect to the electric franchise for the City of Albuquerque, which has expired.
(m) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Plans, Multiemployer Plans and Welfare Plans with respect to any employees of the Borrower as of the date hereof.
(n) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan of the Borrower.
(o) Schedule B (Actuarial Information) to the 1996 annual report (Form 5500 Series) for each Plan of the Borrower, 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.
(p) Neither the Borrower nor any of its ERISA Affiliates has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(q) 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, and no Multiemployer Plan of the Borrower is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(r) No Prohibited Transaction has occurred that has resulted in or is reasonably likely to result in a material liability of the Borrower.
(s) The operations and properties of the Borrower comply in all material respects with all Environmental Laws and neither utilize nor contain nor are affected by any Hazardous Materials that are not treated in compliance with all Environmental Laws, and on the date hereof, the Borrower does not have any material liability, contingent or otherwise, under any Environmental Law, except as set forth in the Borrower's 1997 Form 10-K.
(t) The Borrower 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.
(u) Set forth on Schedule 4.01(v) hereto is a complete and accurate list of the Material Leases on the date hereof, showing the expiration date and annual rental cost thereof. The Borrower is entitled to exercise all of the rights of lessee purported to be granted to the Borrower under each such Material Lease.
(v) Set forth on Schedule 4.01(w) hereto is a complete and accurate list of all Indebtedness (other than Material Leases and intercompany Indebtedness that would be eliminated in preparing the Consolidated financial statements of the Borrower and its Subsidiaries) of the Borrower, showing as of the Effective Date the principal amount outstanding, obligor, obligee and maturity date thereof.
(w) Schedule 4.01(x) hereto, as most recently provided to the enforcement Administrative Agent, sets forth the same (i) amounts with respect to the interest portion of remedies, payments under the Material Leases and (ii) discount rate used to applicable bankruptcy, reorganization, insolvency, moratorium calculate the net present value of all amounts payable under the Material Leases as have been most recently provided (or that the Borrower intends to provide shortly) to ▇▇▇▇▇'▇ and similar laws affecting creditors’ rights generally)S&P or as have otherwise been agreed to by the Majority Lenders.
Appears in 1 contract
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 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 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 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 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 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 as follows:
(a) Each of the The Borrower and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the its 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 and operate its property and assets and properties, to carry on its business as now conducted and as proposed to be conducted, exceptto enter into this Amendment and the Credit Documents, in as amended hereby, and to carry out the case of any such Subsidiarytransactions contemplated thereby, where the failure so to qualify would not result in a Material Adverse Effect, and (iii) is qualified to do business and in good standing in every jurisdiction where such qualification is requiredits assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to qualify 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 of this Amendment have been duly authorized by all necessary action on the part of the Borrower.
(c) The execution, delivery and performance by the Borrower of this Agreement and any Notes to be delivered by it Amendment, the Credit Documents, as amended hereby, and the consummation of the transactions contemplated thereby are within by the Borrower’s corporate powersCredit Documents, have been duly authorized by all necessary corporate action andas amended hereby, if required, stockholder action, do not and do will not (i) contravene the charter violate (A) any provision of any law or other constitutive documents any governmental rule or by-laws of regulation applicable to the Borrower or any Subsidiary of its Subsidiaries, (B) the articles of incorporation, as amended, or by-laws, as amended, of the Borrower, or (iiC) violate any law order, judgment or order decree of any Governmental Authority or any provision of any indenture court or other material agreement or instrument to which agency of government binding on 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, its Subsidiaries; (iiiii) 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 Contractual Obligation of the Borrower or other instrument or any of its Subsidiaries; (iviii) result in or require the creation or imposition of any Lien upon or with respect to any property of the properties or assets now owned or hereafter acquired by of the Borrower or any Subsidiary of its Subsidiaries; or (iv) require any approval of stockholders, members or partners or any approval or consent of any Person under any Contractual Obligation of the BorrowerBorrower or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the date hereof.
(cd) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due The execution, delivery and performance by the Borrower of this Agreement or any Notes to be delivered by itAmendment and the Credit Documents, or for as amended hereby, and the consummation of the transactions contemplated hereby by the Credit Documents, as amended hereby, do not and therebywill not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority, except for such authorizationsregistrations, approvals, actions, notices consents or filings that approvals which have been made obtained on or obtained and are in full force and effectbefore the date hereof.
(de) 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 isBorrower and each Credit Document, and any Notes when delivered hereunder will beas amended hereby, is the legal, legally valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with their its respective terms (subjectterms, except as to the enforcement of remediesmay be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and or similar laws affecting relating to or limiting creditors’ rights generally)generally or by equitable principles relating to enforceability.
(f) No event has occurred and is continuing that constitutes an Event of Default or a Default.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents hereby represents, warrants and warrants covenants to the other parties hereto and the Lenders that as followsof each Transfer Date on or after the Closing Date:
(a) Each of the The Borrower and its Subsidiaries (i) is a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationorganization and has, exceptand had at all relevant times, 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 full power and authority to own its property and assets and property, to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so currently conducted and 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 Agreement and any Notes and each other agreement or instrument contemplated thereby Loan Document to which it is or is to be a party and to borrow under this Agreement.party;
(b) The execution and delivery by the Borrower of each Loan Document to which the Borrower is a party and its performance of and compliance with all of the terms thereof will not violate the Borrower’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Borrower is a party or which are applicable to the Borrower or any of its assets;
(c) The Borrower has the full power and authority to enter into and consummate the transactions contemplated by each Loan Document to which the Borrower is a party, has duly authorized the execution, delivery and performance of each Loan Document to which it is a party and has duly executed and delivered each Loan Document to which it is a party; each Loan Document to which it is a party, assuming due authorization, execution and delivery by the other party or parties thereto, constitutes a valid, legal and binding obligation of the Borrower, enforceable against it in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Borrower is not in violation of, and the execution and delivery by the Borrower of each Loan Document to which the Borrower is a party and its performance and compliance with the terms of each Loan Document to which the Borrower is a party will not constitute a violation with respect to any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over it or its business, which violation would materially and adversely affect the financial condition or operations of the Borrower or any of its properties or materially and adversely affect the performance of any of its duties hereunder;
(e) There are no actions or proceedings against, or investigations of, the Borrower currently pending with regard to which the Borrower has received service of process, and no action or proceeding against, or investigation of, the Borrower is, to the knowledge of the Borrower, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any of the Loan Documents to which it is a party or render its obligations thereunder invalid, (B) seeks to prevent the consummation of any of the transactions contemplated by any of the Loan Documents to which it is a party or (C) would prohibit or materially and adversely affect the performance by the Borrower of its obligations under, or the validity or enforceability of, any of the Loan Documents to which it is a party;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Borrower of this Agreement and of, or compliance by the Borrower with, 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 Loan Documents 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 itparty, or for the consummation of the transactions contemplated hereby and therebyby any of the Loan Documents to which the Borrower is a party, except for such authorizationsconsents, approvals, actionsauthorizations and orders, notices or filings if any, that have been made or obtained and are in full force and effect.prior to such date;
(dg) This Agreement The Borrower is solvent, is able to pay its debts as they become due and has beencapital sufficient to carry on its business and its obligations hereunder; it will not be rendered insolvent by the execution and delivery of any of the Loan Documents to which it is a party or the assumption of any of its obligations thereunder; no petition of bankruptcy (or similar Bankruptcy Proceeding) has been filed by or against the Borrower;
(h) The Borrower will be the sole owner of, each item in the Purchased Assets transferred by the Originator, free and clear of any Notes Lien other than Permitted Liens, and, subject to the Loan Agreement, the Agent will have a first priority perfected security interest in each item of Collateral, in each case free and clear of any Lien other than Permitted Liens;
(i) The Borrower acquired title to the Purchased Assets in good faith, without notice of any adverse claim;
(j) None of the Loan Documents to which the Borrower is a party, nor any Officer’s Certificate, statement, report or other document prepared by the Borrower and furnished or to be delivered furnished by it when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and pursuant to any Notes when delivered hereunder will be, the legal, valid and binding obligation of the Loan Documents to which it is a party or in connection with the transactions contemplated thereby contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading;
(k) The Borrower enforceable against is not required to be registered as an “investment company,” under the Borrower 1940 Act;
(l) The Borrower’s principal place of business and chief executive offices are located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 310, Palo Alto, California 94301, or at such other address as shall be designated by such party in accordance with their respective terms (subject, as a written notice to the enforcement other parties hereto; and
(m) The Borrower covenants that during the continuance of remedies, this Agreement it will comply in all respects with the provisions of its organizational documents in effect from time to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)time.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Representations and Warranties of the Borrower. The As of the First 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 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 First Amendment Effective Date, other than any such representations or warranties that, by their terms, refer to a specific date other than the enforcement First Amendment Effective Date, in which case as of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally)such specific date.
(g) No Defaults exist under the Credit Agreement.
Appears in 1 contract
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 not, exceed any limits prescribed by the Constitution, any of the statutes of the State of Oregon, the Borrower's charter, or any other authority.
(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 December 31, 2015. The Borrower agrees to complete the Project by the estimated Completion Date.
(11) The estimated total Costs of the Project are $38,800,000.
(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 1 contract
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 of 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 LLP, 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 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.
(i) The obligations of the Loan Parties hereunder and similar laws affecting creditors’ under the Notes, and the obligations of the Loan Parties under the Commercial Paper Program, the ANZ Indebtedness, the HSBC Indebtedness, the Citibank Indebtedness, the BPOP Indebtedness and the BBVA Indebtedness are of equal priority (pari passu); and (ii) except for any rights generally)to set-off in favor of the agent(s) or the lenders under Section 9.05 of the Citibank Credit Agreement, Section 9.05 of the ANZ Agreement, Section 9.05 of the BPOP Credit Agreement, Section 9.05 of the BBVA Credit Agreement and Section 8.05 of the HSBC Credit Agreement, no Lien over any Property of the Loan Parties has been granted in favor of the lenders party to such agreement, as security for the obligations of the Borrower and its Subsidiaries under the Commercial Paper Program, the ANZ Indebtedness, the HSBC Indebtedness, the Citibank Indebtedness, the BPOP Indebtedness and the BBVA Indebtedness.
Appears in 1 contract
Sources: Term Credit Agreement (Telecomunicaciones De Puerto Rico 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. 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 Loan Party (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) 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 could not have a Material Adverse Effect and (iii) has the all requisite corporate 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, 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 Amendment and any Notes Waiver and the Loan Documents, as amended hereby, to which such Loan Party is or is to be delivered by it a party, and the consummation of the transactions contemplated thereby hereby or 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 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 or any Subsidiary of the Borrower is a party or by which any of them Loan Party or any of their property is respective Subsidiaries or may be bound or affectedany of their respective properties, (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 material contract, loan agreement, indenture, agreement mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or any of their respective Subsidiaries or any of their respective properties or (iv) except for the Liens created under the Loan Documents, as amended 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 their respective Subsidiaries. No Loan Party or any of their respective Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the Borrowerviolation 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 Amendment and Waiver, the Notes, any other Loan Document, as amended hereby, or any Notes Related Document to which it is or is to be delivered by ita party, or for the consummation of the transactions contemplated hereby and or thereby, (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 by the Collateral Documents (including the first priority nature thereof) or (iv) the exercise by the Agent or any Lender Party 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(d) of the Credit Agreement, all of which have been duly obtained, taken, given or made or obtained and are in full force and effecteffect (other than filings with the patent, trademark and copyright offices of the United States and the relevant foreign countries). All applicable waiting periods in connection with the transactions contemplated hereby and thereby have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the rights of the Loan Parties or their respective Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(d) This Agreement has been, Amendment and any Notes to be delivered by it when delivered hereunder will Waiver and each of the Loan Documents and each of the Related Documents have been, been duly executed and delivered by the Borrowereach Loan Party party thereto. This Agreement isAmendment and Waiver and each of the Loan Documents, as amended hereby, and Related Documents, as amended hereby, to which any Notes when delivered hereunder will be, the Loan Party is or is to be a party are legal, valid and binding obligation obligations of the Borrower such Loan Party enforceable against the Borrower such Loan Party in accordance with the respective terms.
(e) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of their respective terms (subjectSubsidiaries, as including any Environmental Action, pending or, to the enforcement best of remediessuch Loan Parties' knowledge, 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 this Amendment and Waiver, insolvencyany Note, moratorium and similar laws affecting creditors’ rights generally)any other Loan Document as amended hereby or any Related Document or the consummation of the transactions contemplated hereby or thereby.
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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 or partnership duly organized, validly existing and in good standing (except where the failure of one or more Loan Parties, other than the Borrower and its Material Subsidiaries, to be in good standing could not reasonably be expected to result in a Material Adverse Change) under the laws of the jurisdiction in which it is organized and is duly qualified to do business in each jurisdiction where the character of its organization, except, in properties or the case nature of any its activities makes such Subsidiary, where the failure so to qualify would not result in a Material Adverse Effect, qualification necessary.
(iib) Each Loan Party has the requisite corporate or partnership power and authority to own its property and assets and (i) to carry on its business as now conducted, except, in the case of any such Subsidiary, where the failure so being conducted and as proposed to qualify would not result in a Material Adverse Effectbe conducted by it, (iiiii) 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 this Amendment and the Credit Agreement, as amended hereby, and (iii) to take all action necessary to consummate the transactions contemplated under this Agreement Amendment 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 the Credit Agreement, as amended hereby.
(bc) The execution, delivery and performance by the Borrower each Loan Party of this Agreement and any Notes to be delivered by it Amendment, the Credit Agreement, as amended hereby, and the consummation of the transactions contemplated thereby are within the Borrower’s corporate powersConsent, as applicable, have been duly authorized by all necessary corporate action andof its board of directors (or, if requiredin the case of a partnership, stockholder actionof its governing authority), and do not contravene (i) contravene its certificate or articles of incorporation (or, in the charter case of a partnership, governing agreements) 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 indenture, lease or any provision of any indenture written agreement binding on 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, affecting it and do not 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 (other than pursuant to the Collateral Documents) upon or with respect to any of its property or assets now owned or hereafter acquired by the Borrower or any Subsidiary of the Borrowerassets.
(cd) No authorization, authorization or 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 or any Notes to be delivered by itAmendment, the Credit Agreement, as amended hereby, or for the consummation of the transactions contemplated hereby and therebyConsent, except for such authorizations, approvals, actions, notices or filings that have been made or obtained and are in full force and effectas applicable.
(de) This Agreement has been, Amendment and any Notes to be delivered by it when delivered hereunder will the Consent have been, been duly executed and delivered by the Borrowerrespective Loan Party. This Agreement isAmendment, the Credit Agreement, as amended hereby, and any Notes when delivered hereunder will be, the Consent are legal, valid and binding obligation obligations of the Borrower respective Loan Party, enforceable against the Borrower respective Loan Party in accordance with their respective terms (subjectterms, as subject to laws generally affecting the enforcement of remediescreditors' rights.
(f) There is no pending or overtly threatened action or proceeding affecting any Loan Party before any court, governmental agency or arbitrator which would, if adversely determined, result in a Material Adverse Change or which relates to applicable bankruptcyor could reasonably be expected to affect the legality, reorganizationvalidity or enforceability of this Amendment, insolvencythe Credit Agreement, moratorium as amended hereby, or the Consent or the consummation of any of the transactions contemplated hereby.
(g) The execution, delivery and similar laws affecting creditors’ rights generally)performance of this Amendment, the Consent and the Credit Agreement, as amended hereby, do not and will not (i) conflict with, result in a breach of, or constitute (with or without notice or the lapse of time or both) a default under, any instrument, lease, indenture, agreement or other contractual obligation issued by any Loan Party or enforceable against it or any of its property or assets, except under immaterial agreements for supplies or services which are readily replaceable without any adverse effect on such Loan Party or its business or (ii) require any approval of its stockholders.
(h) On the date of the Term Loan C Borrowing, both before and after giving effect thereto and the application of the proceeds therefrom, (i) the representations and warranties contained in Section 3 of this Amendment, in Article IV of the Credit Agreement and in Article III of the Pledge and Security Agreements are correct on and as of such date as though made on and as of such date and (ii) no event has occurred and is continuing, or would result from such extension of credit or from the application of the proceeds therefrom, which constitutes an Event of Default or a Potential Default.
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Sources: Revolving Credit and Term Loan Agreement (Integrated Health Services Inc)