Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows: (a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formed, validly existing and, to the extent such concept applies, in good standing under the laws of the jurisdiction of its incorporation or formation, (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens. (b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP). (c) The execution, delivery and performance by each Loan Party of each Loan Document to which it is or is to be a party and the consummation of the transactions contemplated by the Loan Documents, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene such Loan Party’s constitutional documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (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 of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be reasonably likely to have a Material Adverse Effect. (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 (i) the due execution, delivery, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect. (e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, 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, subject to bankruptcy, insolvency and similar laws of general application relating to creditors’ rights and to general principles of equity. (f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents. (g) The Consolidated balance sheet of the Parent and its Subsidiaries as at December 31, 2004, and the related Consolidated statements of income and of cash flows of the Parent and its Subsidiaries for the Fiscal Year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Parent and its Subsidiaries as at such date and the Consolidated results of operations of the Parent and its Subsidiaries for the Fiscal Year ended on such date, all in accordance with GAAP applied on a consistent basis, and, as of the Effective Date, since December 31, 2004, there has been no Material Adverse Change. (h) 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 and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered). (i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder. (j) Neither any Loan Party nor any of its Subsidiaries is an “investment company”, or an “affiliated person” of, 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 issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder. (k) Each Loan Party is, individually and together with its Subsidiaries, Solvent. (l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are not reasonably expected to have a Material Adverse Effect, (i) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan. (ii) With respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan that is not subject to United States law maintained or contributed to by any Loan Party or with respect to which any Subsidiary of any Loan Party may have liability under applicable local law (a “Foreign Plan”):
Appears in 1 contract
Sources: Credit Agreement (Ace LTD)
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December 31January 30, 20042017, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basisconsistently applied.
(f) Since January 30, and, as of the Effective Date, since December 31, 20042016, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) No informationOn the Effective Date and the date on which any Loans are borrowed, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication not more than five (5%) percent of the Loan Documents or pursuant to the terms value of the Loan Documents contained any untrue statement assets of the Borrowers and their respective Subsidiaries on a material fact or omitted to state a material fact necessary to make consolidated basis will be margin stock (within the statements made therein not misleading as at meaning of Regulation U issued by the date it was dated (or if not dated, so deliveredBoard of Governors of the Federal Reserve System).
(i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent or any Lender (including the Perfection Certificate) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Inventory, Credit Card Account Receivable, DC or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(m) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(n) Except as disclosed in the publicly available reports of Holdings filed with the SEC prior to the Effective Date or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other applicable federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. Except as set forth on Schedule 5.01(n), no Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period ending on the Effective Date. Each Single Employer Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer PlanPlan except as would not reasonably be expected to have a Material Adverse Effect; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. Financing statements and other filings specified in Schedule 5.01(p) in appropriate form have been filed in the offices set forth on Schedule 5.01(p). On the Effective Date, the security interests granted pursuant to the Security Agreement shall, to the extent a security interest in such Collateral can be perfected by filing a UCC financing statement, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each employee benefit plan case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) securing Priority Obligations and/or the Existing Second Lien Notes and Liens which by operation of law would have priority over the Liens securing the Obligations).
(q) The Loan Parties, taken as a whole, are, and after giving effect to the incurrence of all Debt and obligations incurred in connection herewith will be, Solvent.
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Effective Date: (1) except as listed on Schedule 5.01(s), there are no outstanding rights to purchase any equity interests in any Subsidiary of a Loan Party, and (2) the copies of the organization and governing documents of each Loan Party and each amendment hereto provided pursuant to Section 4.01 are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Effective Date, except as would not subject reasonably be expected to United States law maintained have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(a “Foreign Plan”):u) No broker or finder brought about the obtaining, making or closing of the Loans or this Agreement or transactions contemplated by the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’’s or brokerage fees in connection therewith.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December January 31, 20042010, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basis, and, as of the Effective Date, since December consistently applied.
(f) Since January 31, 20042010, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) 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 and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered).
(i) Following application of the proceeds of each Advance hereunderand the Term Loan and the issuance of each Letter of Credit, Margin Stock will constitute less not more than 25% 25 percent of the value of those the assets of any Borrower which are subject to any limitation the Borrowers and their respective Subsidiaries on sale, pledge or other disposition hereundera consolidated basis will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(ji) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent, any Co-Collateral Agent or any Lender (including the Perfection Certificate) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that Holdings and the Borrowers make no representations or warranties with respect to any projections or other nonfactual information contained in such information.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, (ii) the Loan Parties have filed appropriate UCC financing statements against the Persons operating the Dealer Stores covering the Inventory of the Loan Parties located at such Dealer Stores and the Loan Parties have a first priority perfected security interest in all such Inventory and the proceeds thereof, and (iii) no Inventory, Credit Card Account Receivable, DC or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(m) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(n) Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. No Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. Each Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would prevent, or cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Guarantee and Collateral Agreement is effective to create in favor of the Co-Collateral Agents, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. When financing statements and other filings specified on Schedule 5.01(p) in appropriate form are filed in the offices specified on Schedule 5.01(p), the Guarantee and Collateral Agreement shall, to the extent a security interest therein can be perfected by filing a UCC financing statement, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each employee benefit plan case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) which by operation of law would have priority over the Liens securing the Obligations).
(q) The Loan Parties, taken as a whole, are, and after giving effect to the incurrence of all indebtedness and obligations incurred in connection herewith will be, Solvent.
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Effective Date: (1) except as set forth in the Perfection Certificate, there are no outstanding rights to purchase any equity interests in any Subsidiary of a Loan Party other than Sears Canada, and (2) the copies of the organization and governing documents of each Loan Party and each amendment hereto provided pursuant to Section 4.01are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Effective Date, except as would not subject reasonably be expected to United States law maintained have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(u) No broker or finder brought about the obtaining, making or closing of the Advances or the Term Loan or transactions contemplated by the Loan Documents, and, other than amounts payable pursuant to the Fee Letters, no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.
(v) No Loan Party has any obligation to any Permitted Holder with respect to any consulting, management or similar fee; provided, that, for the avoidance of doubt, the foregoing shall not apply to (i) any arrangement disclosed in Holdings’ annual report on form 10-K for the fiscal year ended January 31, 2010; (ii) any employment arrangement between any Loan Party and an individual Person who is also an employee of a “Foreign Plan”):Permitted Holder, so long as such employment arrangements are (x) on terms that are fair and reaso
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries Group Member (ia) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (iib) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate 's powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any the Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effectparty.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Sears and its Subsidiaries as at December 31January 3, 2004, as amended, and the related Consolidated consolidated statements of income and of cash flows of the Parent Sears and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Sears and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Sears and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP consistently applied. The unaudited consolidated balance sheet of Sears and its Subsidiaries as at October 2, 2004, as amended, and the related consolidated statements of income and cash flows of Sears and its Subsidiaries for the nine-month period then ended, copies of which have been furnished to the Agent, fairly present the consolidated financial condition of Sears and its Subsidiaries as at such date and the consolidated results of the operations of Sears and its Subsidiaries for the nine-month period ended on such date, all in accordance with GAAP consistently applied on a consistent basis(subject to year-end audit adjustments). Except as reflected in the most recent financial statements referred to in this paragraph, andor in the notes thereto, neither Sears nor any of its Subsidiaries has, as of the Effective Datedate of such financial statements, since December 31any liabilities (whether absolute, accrued, contingent and whether or not due) which would reasonably be expected to be material to the Borrowers and their Subsidiaries, taken as a whole.
(f) The consolidated balance sheet of Kmart and its Subsidiaries as at January 28, 2004, as amended, and the related consolidated statements of income and cash flows of Kmart and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of BDO ▇▇▇▇▇▇▇, LLP, independent public accountants, copies of which have been furnished to the Agent, fairly present the consolidated financial condition of Kmart and its Subsidiaries as at such date and the consolidated results of the operations of Kmart and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. The unaudited consolidated balance sheet of Kmart and its Subsidiaries as at October 27, 2004, as amended, and the related consolidated statements of income and cash flows of Kmart and its Subsidiaries for the nine-month period then ended, copies of which have been furnished to the Agent, fairly present the consolidated financial condition of Kmart and its Subsidiaries as at such date and the consolidated results of the operations of Kmart and its Subsidiaries for the nine-month period ended on such date, all in accordance with GAAP consistently applied (subject to year-end audit adjustments). Except as reflected in the most recent financial statements referred to in this paragraph, or in the notes thereto, neither Kmart nor any of its Subsidiaries has, as of the date of such financial statements, any liabilities (whether absolute, accrued, contingent and whether or not due) which would reasonably be expected to be material to the Borrowers and their Subsidiaries, taken as a whole.
(g) Since the date the Registration Statement was declared effective by the SEC, there has been no Material Adverse Change.
(h) No informationThe Pro Forma Financial Information has been prepared in accordance with GAAP, exhibit or report furnished with appropriate pro forma adjustments made in accordance with Regulation S-X promulgated by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered)SEC.
(i) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower's knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, governmental agency or arbitrator that would reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(j) Following application of the proceeds of each Advance hereunderand the issuance of each Letter of Credit, Margin Stock will constitute less not more than 25% 25 percent of the value of those the assets of any Borrower which are subject to any limitation the Borrowers and their respective Subsidiaries on sale, pledge or other disposition hereundera consolidated basis will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(jk) Neither any No Loan Party nor any of its Subsidiaries is an “"investment company”", or a company "controlled" by an “affiliated person” of, or “promoter” or “principal underwriter” for, an “"investment company”", as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(l) Except All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any assessment received by Holdings, the Borrowers or any Subsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or other governmental charges have been made in accordance with, and to the extent required by, GAAP.
(m) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent or any Lender (including the Information Memorandum) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that Holdings and the Borrowers make no representations or warranties with respect to any and all events and conditions under clauses projections or other non-factual information contained in such information.
(i) through (v) below of this paragraph (l) Each Group Member has title in fee simple to, or a valid leasehold interest in, all its real property, and good title to, or a valid leasehold interest in, all its other property except as, in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Inventory, Credit Card Account Receivable or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(o) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect:
(i) Neither any Loan Party nor any ERISA Affiliate has incurred each Group Member owns, or is reasonably expected licensed to incur use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Withdrawal Liability to Person challenging or questioning the use of any Multiemployer PlanIntellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(iip) With respect Neither a Reportable Event nor an "accumulated funding deficiency" (within the meaning of Section 412 of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to each scheme the date on which this representation is made or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and deemed made with respect to any Plan, and each employee benefit plan Plan has complied in all material respects with the applicable provisions of ERISA and the Internal Revenue Code. No termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by an amount that is not would reasonably be expected to have a Material Adverse Effect. Neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or could reasonably be expected to result in a material liability under ERISA, and neither the Borrowers nor any Commonly Controlled Entity may reasonably be expected to become subject to United States law maintained any material liability under ERISA if Holdings, any Borrower or contributed any such Commonly Controlled Entity were to by withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(q) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Loan Party Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to which any Subsidiary Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(r) The Guarantee and Collateral Agreement is effective to create in favor of the Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. When financing statements and other filings specified on Schedule 5.01(r) in appropriate form are filed in the offices specified on Schedule 5.01(r), the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a)).
(s) Each Loan Party may have liability under applicable local law (a “Foreign Plan”):is, and after giving effect to the Merger and the incurrence of all indebtedness and obligations being incurred in connection herewith and therewith will be and will continue to be, Solvent.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Parent makes each of the following representations and warrants as followswarranties, and, to the extent any such representation or warranty relates to any other Loan Party or any of its Subsidiaries, such other Loan Party also makes such representation or warranty:
(a) Each Loan Party The Parent is a public limited company validly formed and each of its Material Subsidiaries (i) is duly organized or formed, validly existing and, to under the extent such concept applies, in good standing laws of England and Wales. Global is an exempted company validly incorporated and validly existing under the laws of the Cayman Islands. EII is a corporation validly incorporated and validly existing under the laws of the State of Delaware. EUL is a private limited company validly formed and existing under the laws of England and Wales. EOIC is an exempted company validly formed and validly existing under the laws of the Cayman Islands. Each other Loan Party and each Material Subsidiary is duly organized or validly formed, validly existing and (if applicable) in good standing in each case under the laws of its jurisdiction of its incorporation or formation, (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) . Each Borrower has all requisite power powers and authority (including, without limitation, all material governmental licenses, permits authorizations, consents and other approvals) to own or lease and operate its properties and approvals required in each case to carry on its business as now conducted and to enter into and perform its obligations under the Loan Documents to which it is a party. Each Material Subsidiary (other than the Borrowers) has all requisite powers and all material governmental licenses, authorizations, consents and approvals required in each case to carry on its business as proposed to be now conducted, except where to the extent the failure to have any licensesuch governmental licenses, permit or other approval would authorizations, consents and approvals, could not reasonably be reasonably likely expected to have a Material Adverse Effect. All of , and to enter into and perform its obligations under the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issuedLoan Documents to which it is a party, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liensif applicable.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of this Agreement, the Notes and each other Loan Document to which it is or is to will be a party and the consummation of the transactions contemplated by the Loan Documents, are within such Loan Party’s corporate 's powers, have been duly authorized by all necessary corporate actionaction of such Loan Party, require, in respect of such Loan Party, no action by or in respect of, or filing with, any governmental body, agency or official and do not (i) contravene such Loan Party’s constitutional documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach ofcontravene, or constitute a default under, (i) any contract, loan agreement, indenture, mortgage, deed provision of trust, lease law or other instrument binding on or affecting any regulation applicable to such Loan Party, any (ii) Regulation T, U or X issued by the Federal Reserve Board, (iii) its Bylaws, Memorandum and Articles of its Subsidiaries Association, Articles of Incorporation, or any of their properties other organizational or governing documents, or (iv) except for the Liens created under the any judgment, injunction, order, decree or agreement binding upon such Loan DocumentsParty, or result in or require the creation or imposition of any Lien upon or (other than a Lien created in connection with respect to this Agreement) on any asset of the properties of any such Loan Party or any of its Restricted Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(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 (i) the due execution, delivery, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(ec) This Agreement has beenand each Note are, and each other Loan Document to which a Loan Party is or will be a party, when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This in accordance with this Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation obligations of each such Loan Party party thereto, enforceable against such Loan Party in accordance with its their respective terms, subject to except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or similar laws of general application relating to affecting creditors’ ' rights generally and to by general principles of equity.
(fd) There is no actionIn each case, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, subject to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that Section 2.19(f):
(i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent and its Subsidiaries as at of December 31, 20042010, and duly certified by the related Consolidated statements of income and of cash flows chief executive officer or the chief financial officer of the Parent and its Subsidiaries for the Fiscal Year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent public accountantsParent, copies of which have been furnished to each LenderBank, fairly present presents in all material respects the Consolidated financial condition of the Parent and its Subsidiaries as at of such date and such balance sheet was prepared in accordance with GAAP, except as specifically noted therein.
(ii) The unaudited balance sheet of the Consolidated Parent as of March 31, 2011 and the related unaudited statements of income, cash flows and changes in stockholders' equity accounts for the period from December 31, 2010 through March 31, 2011, certified by a financial or accounting officer of the Parent, copies of which have been delivered to each Bank, fairly present in all material respects, in conformity with GAAP except as otherwise expressly noted therein, the financial position of the Parent as of such date and its results of operations of the Parent and its Subsidiaries changes in financial position for the Fiscal Year ended on such dateperiod, all in accordance with GAAP applied on a consistent basissubject to changes resulting from audit and normal year-end adjustments.
(iii) Since December 31, and, as of 2010 through the Effective Date, since December 31, 2004, there has been no Material Adverse Change.
(he) No informationOther than as disclosed in the annual report on Form 10-K of Parent for the year ended December 31, exhibit 2010 and in the quarterly report on Form 10-Q of Parent for the period ended March 31, 2011 and described in Sections 4.01(d)(i) and (ii), and, on and after the Pride Merger Effective Date, as disclosed in the Annual Report on Form 10-K of Pride for the year ended December 31, 2010 and in the quarterly report on Form 10-Q for the period ended March 31, 2011, there is no action, suit, proceeding, or report furnished by investigation pending against any Loan Party or on behalf any Subsidiary of a Loan Party, or to the knowledge of any Loan Party to any Agent threatened against such Loan Party or any Lender of its Subsidiaries, before any court or arbitrator or any governmental body, agency or official in connection with which there is a reasonable possibility of an adverse decision which could have a Material Adverse Effect or affect the negotiation and syndication legality, validity or enforceability of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered)Documents.
(if) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject No Termination Event has occurred or is reasonably expected to occur with respect to any limitation on sale, pledge or other disposition hereunder.
(j) Plan for which an Insufficiency exists that could reasonably be expected to cause a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has received any notification (or has knowledge of any reason to expect) that any Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, for which a Withdrawal Liability exists that could reasonably be expected to cause a Material Adverse Effect.
(g) The Loan Parties and their Material Subsidiaries have filed all Federal, material state and other material tax returns (or their equivalent), which to the knowledge of such Loan Party, are required to be filed by them and have paid or provided for the payment, before the same become delinquent, of all material taxes due pursuant to such returns (or their equivalent) or pursuant to any assessment received by any Loan Party or any Material Subsidiary, other than those taxes contested in good faith by appropriate proceedings. The charges, accruals and reserves on the books of the Loan Parties and their Material Subsidiaries in respect of taxes are, in the opinion of the Parent, adequate to the extent required by GAAP.
(h) Neither the Parent nor any of its Subsidiaries is required to be registered as an “"investment company”, " or a company "controlled" by an “affiliated person” of, or “promoter” or “principal underwriter” for, an “"investment company”", as such those terms are defined in in, or subject to regulation under, the Investment Company Act of 1940, as amended. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are not reasonably expected to have a Material Adverse Effect,
(i) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(ii) With respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan that is not subject to United States law maintained or contributed to by any Loan Party or with respect to which any Subsidiary of any Loan Party may have liability under applicable local law (a “Foreign Plan”):
Appears in 1 contract
Sources: Credit Agreement (Ensco PLC)
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December 31January 30, 20042016, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basisconsistently applied.
(f) Since January 30, and, as of the Effective Date, since December 31, 20042016, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) No informationOn the Effective Date and the date on which any Incremental Term Loans are borrowed, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication not more than five (5%) percent of the Loan Documents or pursuant to the terms value of the Loan Documents contained any untrue statement assets of the Borrowers and their respective Subsidiaries on a material fact or omitted to state a material fact necessary to make consolidated basis will be margin stock (within the statements made therein not misleading as at meaning of Regulation U issued by the date it was dated (or if not dated, so deliveredBoard of Governors of the Federal Reserve System).
(i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent or any Lender (including the Perfection Certificate) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Inventory, Credit Card Account Receivable, DC or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(m) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(n) Except as disclosed in the publicly available reports of Holdings filed with the SEC prior to the Effective Date or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other applicable federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. Except as set forth on Schedule 5.01(n), no Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. Each Single Employer Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer PlanPlan except as would not reasonably be expected to have a Material Adverse Effect; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. Financing statements and other filings specified in Schedule 5.01(p) in appropriate form have been filed in the offices set forth on Schedule 5.01(p). On the Effective Date, the security interests granted pursuant to the Security Agreement shall, to the extent a security interest in such Collateral can be perfected by filing a UCC financing statement, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each employee benefit plan case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) securing Priority Obligations and/or the Existing Second Lien Notes and Liens which by operation of law would have priority over the Liens securing the Obligations).
(q) The Loan Parties, taken as a whole, are, and after giving effect to the incurrence of all Debt and obligations incurred in connection herewith will be, Solvent.
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Effective Date: (1) except as listed on Schedule 5.01(s), there are no outstanding rights to purchase any equity interests in any Subsidiary of a Loan Party, and (2) the copies of the organization and governing documents of each Loan Party and each amendment hereto provided pursuant to Section 4.01 are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Effective Date, except as would not subject reasonably be expected to United States law maintained have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(a “Foreign Plan”):u) No broker or finder brought about the obtaining, making or closing of the Term Loan or transactions contemplated by the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formed, validly existing and, to the extent such concept applies, in good standing under the laws of the jurisdiction of its incorporation or formation, (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP)Party.
(c) The execution, delivery and performance by each Loan Party of each Loan Document to which it is or is to be a party and the consummation of the transactions contemplated by the Loan Documents, are within such Loan Party’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene such Loan Party’s 's constitutional documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (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 of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(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 (i) the due execution, delivery, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan DocumentsDocuments (other than the Acquisition), or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, 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, subject to bankruptcy, insolvency and similar laws of general application relating to creditors’ rights and to general principles of equity.
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, or threatened before any court, governmental agency or arbitrator that (i) would could be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet sheets of the Parent and its Subsidiaries as at December 31September 30, 20041998, and the related Consolidated statements of income and of cash flows of the Parent and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent public accountants, and the Consolidated balance sheets of the Parent and its Subsidiaries as at December 31, 1998, and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the three months then ended, duly certified by the Chief Financial Officer of the Parent, copies of which have been furnished to each Lender, fairly present present, subject, in the case of said balance sheet as at December 31, 1998, 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 Parent and its Subsidiaries as at such date dates and the Consolidated results of operations of the Parent and its Subsidiaries for the Fiscal Year periods ended on such datedates, all in accordance with GAAP generally accepted accounting principles applied on a consistent basisbasis (subject, and, as in the case of the Effective DateDecember 31, 1998 balance sheet and statements, to the absence of footnotes), and since December 31, 20041998, there has been no Material Adverse Change.
(h) No The Consolidated forecasted balance sheet, statements of income and statements of cash flows of the Parent and its Subsidiaries contained in the Information Memorandum were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Parent's best estimate of its future financial performance.
(i) Neither the Information Memorandum nor any other written information, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered).
(ij) Following application None of the Borrowers is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of each any Advance hereunder, or drawings under any Letter of Credit will be used to purchase or carry any Margin Stock will constitute less than 25% or to extend credit to others for the purpose of the value of those assets of purchasing or carrying any Borrower which are subject to any limitation on sale, pledge or other disposition hereunderMargin Stock.
(jk) Neither any Loan Party nor any of its Subsidiaries is an “"investment company”", or an “"affiliated person” " of, 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 issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(kl) Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that is reasonably likely to have a Material Adverse Effect.
(m) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(ln) Except to the extent that any and all events and conditions under clauses (i) through (vvi) below of this paragraph (ln) in the aggregate are not reasonably expected to have a Material Adverse Effect,
, (i) Neither any Loan Party nor any ERISA Affiliate Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Pension Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Pension Plan, and since the date of such Schedule B there has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Planbeen no material adverse change in such funding status.
(ii) With respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan that is not subject to United States law maintained or contributed to by any Loan Party or with respect to which any Subsidiary of any Loan Party may have liability under applicable local law (a “Foreign Plan”):
Appears in 1 contract
Sources: Credit Agreement (Ace LTD)
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do (x) will not (i) contravene such Loan Party’s constitutional documents, (ii) violate result in a breach of any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach terms and provisions of, or constitute a default underunder the Material Documents, any contract, loan agreement, indenture, mortgage, deed of trust, lease and (y) do not contravene (i) the charter or by-laws or other instrument organizational or governing documents of such Loan Party or (ii) law or any contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for y)(ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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 (including Sears Mexico) is required for (i) the due execution, delivery, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December 31January 30, 20042017, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basisconsistently applied.
(f) Since January 30, and, as of the Effective Date, since December 31, 20042017, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) No informationOn the Effective Date and the date on which any Term Loans are borrowed, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication not more than five (5%) percent of the Loan Documents or pursuant to the terms value of the Loan Documents contained any untrue statement assets of the Borrowers and their respective Subsidiaries on a material fact or omitted to state a material fact necessary to make consolidated basis will be margin stock (within the statements made therein not misleading as at meaning of Regulation U issued by the date it was dated (or if not dated, so deliveredBoard of Governors of the Federal Reserve System).
(i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent or any Lender for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Collateral is subject to any Lien except as permitted by Section 6.02(a).
(i) Each Loan Party owns or has valid rights to use all of the material Intellectual Property that is used in or necessary for the conduct of its business as currently conducted and (ii) neither the Intellectual Property of any Group Member nor the use of any Intellectual Property by any Group Member materially infringes, violates, misappropriates or otherwise violates the Intellectual Property of any Person.
(n) Except as disclosed in the publicly available reports of Holdings filed with the SEC prior to the Effective Date or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other applicable federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. Except as set forth on Schedule 5.01(n), no Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period ending on the Effective Date. Each Single Employer Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer PlanPlan except as would not reasonably be expected to have a Material Adverse Effect; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to each employee any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Security Agreement is effective to create in favor of the Agent, for the benefit plan that is not of the Credit Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof, subject to United States all Permitted Liens. On the Effective Date, to the extent a security interest in such Collateral can be perfected by filing a UCC financing statement (or, with respect to registered, issued or applied-for Intellectual Property that may be perfected by the filing of an IP Security Agreement with the USPTO, USCO or IP Filing Office, on the date the relevant IP Security Agreement is filed with the applicable IP Filing Office), the security interests granted pursuant to the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) and Liens which by operation of law would have priority over the Liens securing the Obligations).
(q) [Reserved].
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Effective Date: (1) except as listed on Schedule 5.01(s), there are no outstanding rights to purchase any equity interests in any Subsidiary of a Loan Party, and (2) the copies of the organization and governing documents of each Loan Party and each amendment hereto provided pursuant to Section 4.01 are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Effective Date, except as would not reasonably be expected to have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(a “Foreign Plan”):u) No broker or finder brought about the obtaining, making or closing of the Loans or this Agreement or transactions contemplated by the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Material Subsidiaries (other than Inactive Subsidiaries) (i) is a corporation duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formationincorporation, (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than capital stock of the Parent) have Company has been validly issued, are is fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, is owned by the Parent WHX Corporation free and clear of all Liens.
(b) Each Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, the number of shares of each class of capital stock authorized, and the number outstanding, on the date hereof 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 at the date hereof. All of the outstanding capital stock of all of each Loan Party's Subsidiaries (other than Inactive 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 has filed, has caused to be filed or has been included in free and clear of all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penaltiesLiens, except to those created under the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP)Collateral Documents.
(c) The execution, delivery and performance by each Loan Party of each Loan Transaction Document to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Transaction Documents, are within such Loan Party’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene such Loan Party’s constitutional documents's charter or bylaws, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgageindenture or mortgage or any material contract, 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 the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No Other than the filings contemplated to be made pursuant to Section 3.01, 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, recordation, filing or performance by any Loan Party of any Loan Transaction Document to which it is or is to be a party party, or for the other consummation of the transactions contemplated by the Loan Transaction Documents, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (iiiv) the exercise by any 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 the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each other Loan Transaction 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, subject to except as such enforceability may be limited by the effect of any applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or similar laws of general application relating to law affecting creditors’ ' rights and to general principles of equitygenerally.
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Transaction Document or the consummation of the transactions contemplated by the Loan Transaction Documents.
(g) The Consolidated balance sheet sheets of the Parent Company and its Subsidiaries as at December 31, 20041997, and the related Consolidated statements of income and Consolidated statement of cash flows of the Parent Company and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLPKPMG Peat Marwick, independent public accountants, and the Consolidated balance sheets of the Company and its Subsidiaries as at June 30, 1998, and the related Consolidated statements of income and Consolidated statement of cash flows of the Company and its Subsidiaries for the six months then ended, duly certified by a Designated Officer of the Company, copies of which have been furnished to each LenderLender Party, fairly present present, subject, in the case of said balance sheet as at June 30, 1998, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated financial condition of the Parent Company and its Subsidiaries as at such date dates and the Consolidated results of operations of the Parent Company and its Subsidiaries for the Fiscal Year periods ended on such datedates, all in accordance with GAAP generally accepted accounting principles applied on a consistent basis, and, as of the Effective Date, and since December 31, 20041997, there has been no Material Adverse Change.
(h) No The Consolidated pro forma balance sheets of the Company and its Subsidiaries as at June 30, 1998, and the related Consolidated pro forma statements of income and cash flows of the Company and its Subsidiaries for the six months then ended, certified by a Designated Officer of the Company, copies of which have been furnished to each Lender Party, fairly present the Consolidated pro forma financial condition of the Company and its Subsidiaries as at such date and the Consolidated pro forma results of operations of the Company and its Subsidiaries for the period ended on such date, in each case giving effect to the transactions contemplated by the Transaction Documents, the acquisition of the Company by WHX Corporation and the precious metals dividend contemplated by Section 5.02(g)(i)(B), all in accordance with GAAP.
(i) The Consolidated and, as to the five business segments of the Company, consolidating, forecasted balance sheets, statements of income and statements of cash flows of the Company and its Subsidiaries delivered to the Lender Parties pursuant to Section 3.01(a)(xiv) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Company's best estimate of its future financial performance (it being understood that the Company can give no assurance that future performance will equal the forecasts or that the results of operations will not differ substantially therefrom).
(j) Neither the Information Memorandum nor any other information, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered)misleading.
(ik) Following application No Borrower is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of each Advance hereunderany Advance, any Drawing or drawings under any Letter of Credit will be used to purchase or carry any Margin Stock will constitute less than 25% or to extend credit to others for the purpose of the value of those assets of purchasing or carrying any Borrower which are subject to any limitation on sale, pledge or other disposition hereunderMargin Stock.
(jl) Neither any Loan Party nor any of its Subsidiaries is an “"investment company”", or an “"affiliated person” " of, 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 issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Transaction Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(km) Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that would be reasonably likely to have a Material Adverse Effect.
(n) After giving effect to the filings contemplated to be made pursuant to Section 3.01, the Collateral Documents create 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. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents.
(o) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(lp) Except to the extent that any and all events and conditions under clauses (i) through (vSet forth on Schedule 4.01(p) below hereto is a complete and accurate list of this paragraph (l) in the aggregate are not reasonably expected to have a Material Adverse Effect,
(i) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any all Plans, Multiemployer PlanPlans and Welfare Plans.
(ii) With respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan that is not subject to United States law maintained or contributed to by any Loan Party or with respect to which any Subsidiary of any Loan Party may have liability under applicable local law (a “Foreign Plan”):
Appears in 1 contract
Sources: Credit Agreement (WHX Corp)
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December January 31, 20042010, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basis, and, as of the Effective Date, since December consistently applied.
(f) Since January 31, 20042010, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) 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 and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered).
(i) Following application of the proceeds of each Advance hereunderand the issuance of each Letter of Credit, Margin Stock will constitute less not more than 25% 25 percent of the value of those the assets of any Borrower which are subject to any limitation the Borrowers and their respective Subsidiaries on sale, pledge or other disposition hereundera consolidated basis will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(ji) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent, any Co-Collateral Agent or any Lender (including the Perfection Certificate) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that Holdings and the Borrowers make no representations or warranties with respect to any projections or other nonfactual information contained in such information.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, (ii) the Loan Parties have filed appropriate UCC financing statements against the Persons operating the Dealer Stores covering the Inventory of the Loan Parties located at such Dealer Stores and the Loan Parties have a first priority perfected security interest in all such Inventory and the proceeds thereof, and (iii) no Inventory, Credit Card Account Receivable, DC or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(m) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(n) Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. No Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. Each Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would prevent, or cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Guarantee and Collateral Agreement is effective to create in favor of the Co-Collateral Agents, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. When financing statements and other filings specified on Schedule 5.01(p) in appropriate form are filed in the offices specified on Schedule 5.01(p), the Guarantee and Collateral Agreement shall, to the extent a security interest therein can be perfected by filing a UCC financing statement, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each employee benefit plan case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) which by operation of law would have priority over the Liens securing the Obligations).
(q) The Loan Parties, taken as a whole, are, and after giving effect to the incurrence of all indebtedness and obligations incurred in connection herewith will be, Solvent.
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Effective Date: (1) except as set forth in the Perfection Certificate, there are no outstanding rights to purchase any equity interests in any Subsidiary of a Loan Party other than Sears Canada, and (2) the copies of the organization and governing documents of each Loan Party and each amendment hereto provided pursuant to Section 4.01are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Effective Date, except as would not subject reasonably be expected to United States law maintained have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(u) No broker or finder brought about the obtaining, making or closing of the Advances or transactions contemplated by the Loan Documents, and, other than amounts payable pursuant to the Fee Letters, no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.
(v) No Loan Party has any obligation to any Permitted Holder with respect to any consulting, management or similar fee; provided, that, for the avoidance of doubt, the foregoing shall not apply to (i) any arrangement disclosed in Holdings’ annual report on form 10-K for the fiscal year ended January 31, 2010; (ii) any employment arrangement between any Loan Party and an individual Person who is also an employee of a “Foreign Plan”):Permitted Holder, so long as such employment arrangements are (x) on terms that are fair and reasonable and comparable to terms provi
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower of Parent and the other Borrowers represents and warrants as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is a Business Entity duly organized or formed, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, (ii) organization. Each Material Subsidiary is duly qualified organized, validly existing and in good standing as a foreign corporation or other entity in each other the jurisdiction in which it owns or leases property or in which the conduct of its formation. Each Loan Party and each Material Subsidiary possess all applicable Business Entity powers and all other authorizations and licenses necessary to engage in its business requires it to so qualify or be licensed except where and operations as now conducted, the failure to so qualify obtain or be licensed maintain which would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely to have a Material Adverse Effect. All Each Subsidiary of Parent that is, on and as of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issuedEffective Date, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liensa Material Subsidiary is listed on Schedule 7.01 hereto.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to The Transactions are within the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party Business Entity powers of each Loan Document to which it is or is to be a party and the consummation of the transactions contemplated by the Loan Documents, are within such applicable Loan Party’s corporate powers, have been duly authorized by all necessary corporate actionapplicable Business Entity action on the part of each applicable Loan Party, and do not contravene (i) contravene such the Organization Documents of any applicable Loan Party’s constitutional documents, Party or (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination Laws or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any applicable Loan Party, 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 of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrumentThis Agreement, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byNotes, if any, 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, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which Financing Documents have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. .
(c) The Transactions do not require any authorization or approval or other action by, nor any notice to or filing with, any Governmental Authority for the due execution, delivery and performance by each Loan Party party thereto of this Agreement, the Notes, if any, or the other Financing Documents, as applicable, that has not been duly made or obtained, except those (i) required in the ordinary course to comply with ongoing covenant obligations of the Borrowers hereunder, the performance of which is not yet due, and (ii) that will, in the ordinary course of business in accordance with this Agreement, be duly made or obtained on or prior to the time or times the performance of such obligations shall be due.
(d) This Agreement isconstitutes, and each the Notes (if and when delivered hereunder) and the other Loan Document Financing Documents, when delivered hereunder will beshall constitute, the legal, valid and binding obligation obligations of each the Loan Party Parties party thereto, enforceable against each such Loan Party Person in accordance with its their respective terms, subject to except as may be limited by applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or other similar laws of general application relating to affecting creditors’ rights and to generally or by general principles of equity.
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent and its Subsidiaries as at December 31, 2004, and the related Consolidated statements of income and of cash flows of the Parent and its Subsidiaries for the Fiscal Year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Parent and its Subsidiaries as at such date and the Consolidated results of operations of the Parent and its Subsidiaries for the Fiscal Year ended on such date, all in accordance with GAAP applied on a consistent basis, and, as of the Effective Date, since December 31, 2004, there has been no Material Adverse Change.
(h) 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 and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered).
(i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any Loan Party nor any of its Subsidiaries is an “investment company”, or an “affiliated person” of, 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 issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are not reasonably expected to have a Material Adverse Effect,
(i) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(ii) With respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan that is not subject to United States law maintained or contributed to by any Loan Party or with respect to which any Subsidiary of any Loan Party may have liability under applicable local law (a “Foreign Plan”):
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December 31January 30, 20042016,2017, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basisconsistently applied.
(f) Since January 30, and, as of the Effective Date, since December 31, 20042016, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) No informationOn the Effective Date and the date on which any Incremental Term Loans are borrowed, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication not more than five (5%) percent of the Loan Documents or pursuant to the terms value of the Loan Documents contained any untrue statement assets of the Borrowers and their respective Subsidiaries on a material fact or omitted to state a material fact necessary to make consolidated basis will be margin stock (within the statements made therein not misleading as at meaning of Regulation U issued by the date it was dated (or if not dated, so deliveredBoard of Governors of the Federal Reserve System).
(i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent or any Lender (including the Perfection Certificate) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Inventory, Credit Card Account Receivable, DC or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(m) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(n) Except as disclosed in the publicly available reports of Holdings filed with the SEC prior to the Effective Date or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other applicable federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. Except as set forth on Schedule 5.01(n), no Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period ending on the Effective Date. Each Single Employer Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer PlanPlan except as would not reasonably be expected to have a Material Adverse Effect; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. Financing statements and other filings specified in Schedule 5.01(p) in appropriate form have been filed in the offices set forth on Schedule 5.01(p). On the Effective Date, the security interests granted pursuant to the Security Agreement shall, to the extent a security interest in such Collateral can be perfected by filing a UCC financing statement, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each employee benefit plan case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) securing Priority Obligations and/or the Existing Second Lien Notes and Liens which by operation of law would have priority over the Liens securing the Obligations).
(q) The Loan Parties, taken as a whole, are, and after giving effect to the incurrence of all Debt and obligations incurred in connection herewith will be, Solvent.
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Effective Date: (1) except as listed on Schedule 5.01(s), there are no outstanding rights to purchase any equity interests in any Subsidiary of a Loan Party, and (2) the copies of the organization and governing documents of each Loan Party and each amendment hereto provided pursuant to Section 4.01 are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Effective Date, except as would not subject reasonably be expected to United States law maintained have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(a “Foreign Plan”):u) No broker or finder brought about the obtaining, making or closing of the Term LoanLoans or this Agreement or transactions contemplated by the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Parent makes each of the following representations and warrants as followswarranties, and, to the extent any such representation or warranty relates to any other Loan Party or any of its Subsidiaries, such other Loan Party also makes such representation or warranty:
(a) Each Loan Party The Parent is a public limited company validly formed and each of its Material Subsidiaries (i) is duly organized or formed, validly existing and, to under the extent such concept applies, in good standing laws of England and Wales. Global is an exempted company validly incorporated and validly existing under the laws of the Cayman Islands. EII is a corporation validly incorporated and validly existing under the laws of the State of Delaware. EUL is a private limited company validly formed and existing under the laws of England and Wales. EOIC is an exempted company validly formed and validly existing under the laws of the Cayman Islands. Each other Loan Party and each Material Subsidiary is duly organized or validly formed, validly existing and (if applicable) in good standing in each case under the laws of its jurisdiction of its incorporation or formation, (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) . Each Borrower has all requisite power powers and authority (including, without limitation, all material governmental licenses, permits authorizations, consents and other approvals) to own or lease and operate its properties and approvals required in each case to carry on its business as now conducted and to enter into and perform its obligations under the Loan Documents to which it is a party. Each Material Subsidiary (other than the Borrowers) has all requisite powers and all material governmental licenses, authorizations, consents and approvals required in each case to carry on its business as proposed to be now conducted, except where to the extent the failure to have any licensesuch governmental licenses, permit or other approval would authorizations, consents and approvals, could not reasonably be reasonably likely expected to have a Material Adverse Effect. All of , and to enter into and perform its obligations under the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issuedLoan Documents to which it is a party, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liensif applicable.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of this Agreement, the Notes and each other Loan Document to which it is or is to will be a party and the consummation of the transactions contemplated by the Loan Documents, are within such Loan Party’s corporate 's powers, have been duly authorized by all necessary corporate actionaction of such Loan Party, require, in respect of such Loan Party, no action by or in respect of, or filing with, any governmental body, agency or official and do not (i) contravene such Loan Party’s constitutional documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach ofcontravene, or constitute a default under, (i) any contract, loan agreement, indenture, mortgage, deed provision of trust, lease law or other instrument binding on or affecting any regulation applicable to such Loan Party, any (ii) Regulation T, U or X issued by the Federal Reserve Board, (iii) its Bylaws, Memorandum and Articles of its Subsidiaries Association, Articles of Incorporation, or any of their properties other organizational or governing documents, or (iv) except for the Liens created under the any judgment, injunction, order, decree or agreement binding upon such Loan DocumentsParty, or result in or require the creation or imposition of any Lien upon or (other than a Lien created in connection with respect to this Agreement) on any asset of the properties of any such Loan Party or any of its Restricted Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(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 (i) the due execution, delivery, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(ec) This Agreement has beenand each Note are, and each other Loan Document to which a Loan Party is or will be a party, when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This in accordance with this Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation obligations of each such Loan Party party thereto, enforceable against such Loan Party in accordance with its their respective terms, subject to except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency and insolvency, reorganization, moratorium or similar laws of general application relating to affecting creditors’ ' rights generally and to by general principles of equity.
(fd) There is no actionIn each case, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, subject to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that Section 2.18(f):
(i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent and its Subsidiaries as at of December 31, 20042010, and duly certified by the related Consolidated statements of income and of cash flows chief executive officer or the chief financial officer of the Parent and its Subsidiaries for the Fiscal Year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent public accountantsParent, copies of which have been furnished to each LenderBank, fairly present presents in all material respects the Consolidated financial condition of the Parent and its Subsidiaries as at of such date and such balance sheet was prepared in accordance with GAAP, except as specifically noted therein.
(ii) The unaudited balance sheet of the Consolidated Parent as of March 31, 2011 and the related unaudited statements of income, cash flows and changes in stockholders' equity accounts for the period from December 31, 2010 through March 31, 2011, certified by a financial or accounting officer of the Parent, copies of which have been delivered to each Bank, fairly present in all material respects, in conformity with GAAP except as otherwise expressly noted therein, the financial position of the Parent as of such date and its results of operations of the Parent and its Subsidiaries changes in financial position for the Fiscal Year ended on such dateperiod, all in accordance with GAAP applied on a consistent basissubject to changes resulting from audit and normal year-end adjustments.
(iii) Since December 31, and, as of 2010 through the Effective Date, since December 31, 2004, there has been no Material Adverse Change.
(he) No informationOther than as disclosed in the annual report on Form 10-K of Parent for the year ended December 31, exhibit 2010 and in the quarterly report on Form 10-Q of Parent for the period ended March 31, 2011 and described in Sections 4.01(d)(i) and (ii), and, on and after the Pride Merger Effective Date, as disclosed in the Annual Report on Form 10-K of Pride for the year ended December 31, 2010 and in the quarterly report on Form 10-Q for the period ended March 31, 2011, there is no action, suit, proceeding, or report furnished by investigation pending against any Loan Party or on behalf any Subsidiary of a Loan Party, or to the knowledge of any Loan Party to any Agent threatened against such Loan Party or any Lender of its Subsidiaries, before any court or arbitrator or any governmental body, agency or official in connection with which there is a reasonable possibility of an adverse decision which could have a Material Adverse Effect or affect the negotiation and syndication legality, validity or enforceability of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered)Documents.
(if) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject No Termination Event has occurred or is reasonably expected to occur with respect to any limitation on sale, pledge or other disposition hereunder.
(j) Plan for which an Insufficiency exists that could reasonably be expected to cause a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has received any notification (or has knowledge of any reason to expect) that any Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, for which a Withdrawal Liability exists that could reasonably be expected to cause a Material Adverse Effect.
(g) The Loan Parties and their Material Subsidiaries have filed all Federal, material state and other material tax returns (or their equivalent), which to the knowledge of such Loan Party, are required to be filed by them and have paid or provided for the payment, before the same become delinquent, of all material taxes due pursuant to such returns (or their equivalent) or pursuant to any assessment received by any Loan Party or any Material Subsidiary, other than those taxes contested in good faith by appropriate proceedings. The charges, accruals and reserves on the books of the Loan Parties and their Material Subsidiaries in respect of taxes are, in the opinion of the Parent, adequate to the extent required by GAAP.
(h) Neither the Parent nor any of its Subsidiaries is required to be registered as an “"investment company”, " or a company "controlled" by an “affiliated person” of, or “promoter” or “principal underwriter” for, an “"investment company”", as such those terms are defined in in, or subject to regulation under, the Investment Company Act of 1940, as amended. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are not reasonably expected to have a Material Adverse Effect,
(i) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(ii) With respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan that is not subject to United States law maintained or contributed to by any Loan Party or with respect to which any Subsidiary of any Loan Party may have liability under applicable local law (a “Foreign Plan”):
Appears in 1 contract
Sources: 364 Day Credit Agreement (Ensco PLC)
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do (x) will not (i) contravene such Loan Party’s constitutional documents, (ii) violate result in a breach of any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach terms and provisions of, or constitute a default under, any contractthe Existing Credit Agreement, loan agreement, indenture, mortgage, deed of trust, lease and (y) do not contravene (i) the charter or by-laws or other instrument organizational or governing documents of such Loan Party or (ii) law or any contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December 31January 30, 20042016,2017, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basisconsistently applied.
(f) Since January 30, and, as of the Effective Date, since December 31, 20042016,2017, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) No informationFollowing each L/C Extension, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication not more than five (5%) percent of the Loan Documents or pursuant to the terms value of the Loan Documents contained any untrue statement assets of the Borrowers and their respective Subsidiaries on a material fact or omitted to state a material fact necessary to make consolidated basis will be margin stock (within the statements made therein not misleading as at meaning of Regulation U issued by the date it was dated (or if not dated, so deliveredBoard of Governors of the Federal Reserve System).
(i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent or any Lender (including the Perfection Certificate) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified; provided that with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Collateral, DC or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(m) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(n) Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other applicable federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. Except as set forth on Schedule 5.01(n), no Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. Each Single Employer Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer PlanPlan except as would not reasonably be expected to have a Material Adverse Effect; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Guarantee and Collateral Agreement is effective to create in favor of the Co-Collateral Agents, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in the ABL Collateral described therein and proceeds thereof. The Guarantee and Collateral Agreement constitutes, to the extent a security interest can be perfected by filing the UCC financing statements specified on Schedule 5.01(p) and by executing the control agreements described on Schedule 5.01(p), a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the ABL Collateral and the proceeds thereof, as security for the ABL Obligations, in each employee case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) which by operation of law would have priority over the Liens securing the ABL Obligations). Each Mortgage, upon execution and delivery thereof by the parties thereto, will create in favor of the Agent for the benefit plan that is not of the L/C Lenders and the Issuing Bank, a legal, valid and enforceable second lien, subject to United States law Permitted Liens, security interest in all the applicable mortgagor’s right, title and interest in and to the Real Estate Collateral subject thereto and the proceeds thereof, and when the Mortgages have been filed in the appropriate filing or recording office in the jurisdictions specified therein, the Mortgages will constitute a fully perfected security interest in all right, title and interest of the mortgagors in the Real Estate Collateral and the proceeds thereof, prior and superior to the rights of any other Person, except for rights secured by Liens permitted under Section 6.02.
(q) The Loan Parties, taken as a whole, are, and after giving effect to the incurrence of all Debt and obligations incurred in connection herewith will be, Solvent.
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Effective Date, the copies of the organization and governing documents of each Loan Party and each amendment thereto provided pursuant to Section 4.01 are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Effective Date, except as would not reasonably be expected to have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(a “Foreign Plan”):u) No broker or finder brought about the obtaining, making or closing of the transactions contemplated by this Agreement and the other Loan Documents, and, other than amounts payable pursuant to the Fee Letter, no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’’s or brokerage fees in connection therewith.
(v) No Loan Party has any obligation to any Permitted Holder with respect to any consulting, management or similar fee; provided, that, for the avoidance of doubt, the fore
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Sears Holdings Corp)
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December 31January 30, 20042017, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basisconsistently applied.
(f) Since January 30, and, as of the Effective Date, since December 31, 20042016, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) No informationOn the Effective Date and the date on which any Loans are borrowed, exhibit or report furnished by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication not more than five (5%) percent of the Loan Documents or pursuant to the terms value of the Loan Documents contained any untrue statement assets of the Borrowers and their respective Subsidiaries on a material fact or omitted to state a material fact necessary to make consolidated basis will be margin stock (within the statements made therein not misleading as at meaning of Regulation U issued by the date it was dated (or if not dated, so deliveredBoard of Governors of the Federal Reserve System).
(i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent or any Lender (including the Perfection Certificate) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Inventory, Credit Card Account Receivable, DC or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(m) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(n) Except as disclosed in the publicly available reports of Holdings filed with the SEC prior to the Effective Date or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other applicable federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. Except as set forth on Schedule 5.01(n), no Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period ending on the Effective Date. Each Single Employer Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer PlanPlan except as would not reasonably be expected to have a Material Adverse Effect; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Security Agreement is effective to create in favor of the Collateral Agent, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. Financing statements and other filings specified in Schedule 5.01(p) in appropriate form have been filed in the offices set forth on Schedule 5.01(p). On the Effective Date, the security interests granted pursuant to the Security Agreement shall, to the extent a security interest in such Collateral can be perfected by filing a UCC financing statement, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each employee benefit plan case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) securing Priority Obligations and/or the Existing Second Lien Notes and Liens which by operation of law would have priority over the Liens securing the Obligations).
(q) The Loan Parties, taken as a whole, are, and after giving effect to the incurrence of all Debt and obligations incurred in connection herewith will be, Solvent.
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Effective Date: (1) except as listed on Schedule 5.01(s), there are no outstanding rights to purchase any equity interests in any Subsidiary of a Loan Party, and (2) the copies of the organization and governing documents of each Loan Party and each amendment hereto provided pursuant to Section 4.01 are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Effective Date, except as would not subject reasonably be expected to United States law maintained have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(a “Foreign Plan”):u) No broker or finder brought about the obtaining, making or closing of the Loans or this Agreement or transactions contemplated by the Loan Documents, and no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formed, validly existing and, to the extent such concept applies, in good standing under the laws of the jurisdiction of its incorporation or formation, (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party and each as of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP)Effective Date.
(c) The execution, delivery and performance by each Loan Party of each Loan Document to which it is or is to be a party and the consummation of the transactions contemplated by the Loan Documents, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene such Loan Party’s constitutional documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (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 of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(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 (i) the due execution, delivery, recordation, filing or performance by any Loan Party of any Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, 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, subject to bankruptcy, insolvency and similar laws of general application relating to creditors’ rights and to general principles of equity.
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would could be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent and its Subsidiaries as at December 31, 20042003, and the related Consolidated statements statement of income and of cash flows of the Parent and its Subsidiaries for the Fiscal Year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Parent and its Subsidiaries as at such date and the Consolidated results of operations of the Parent and its Subsidiaries for the Fiscal Year ended on such date, all in accordance with GAAP generally accepted accounting principles applied on a consistent basis, and, as of the Effective Date, since December 31, 20042003, there has been no Material Adverse Change.
(h) 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 and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered).
(i) Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any Loan Party nor any of its Subsidiaries is an “investment company”, or an “affiliated person” of, 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 issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are not reasonably expected to have a Material Adverse Effect,
(i) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(ii) With respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan that is not subject to United States law maintained or contributed to by any Loan Party or with respect to which any Subsidiary of any Loan Party may have liability under applicable local law (a “Foreign Plan”):
Appears in 1 contract
Sources: Credit Agreement (Ace LTD)
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries Group Member (ia) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (iib) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate 's powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any the Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effectparty.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Sears and its Subsidiaries as at December 31January 3, 2004, as amended, and the related Consolidated consolidated statements of income and of cash flows of the Parent Sears and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Sears and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Sears and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP consistently applied. The unaudited consolidated balance sheet of Sears and its Subsidiaries as at October 2, 2004, as amended, and the related consolidated statements of income and cash flows of Sears and its Subsidiaries for the nine-month period then ended, copies of which have been furnished to the Agent, fairly present the consolidated financial condition of Sears and its Subsidiaries as at such date and the consolidated results of the operations of Sears and its Subsidiaries for the nine-month period ended on such date, all in accordance with GAAP consistently applied on a consistent basis(subject to year-end audit adjustments). Except as reflected in the most recent financial statements referred to in this paragraph, andor in the notes thereto, neither Sears nor any of its Subsidiaries has, as of the Effective Datedate of such financial statements, since December 31any liabilities (whether absolute, accrued, contingent and whether or not due) which would reasonably be expected to be material to the Borrowers and their Subsidiaries, taken as a whole.
(f) The consolidated balance sheet of Kmart and its Subsidiaries as at January 28, 2004, as amended, and the related consolidated statements of income and cash flows of Kmart and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of BDO ▇▇▇▇▇▇▇, LLP, independent public accountants, copies of which have been furnished to the Agent, fairly present the consolidated financial condition of Kmart and its Subsidiaries as at such date and the consolidated results of the operations of Kmart and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. The unaudited consolidated balance sheet of Kmart and its Subsidiaries as at October 27, 2004, as amended, and the related consolidated statements of income and cash flows of Kmart and its Subsidiaries for the nine-month period then ended, copies of which have been furnished to the Agent, fairly present the consolidated financial condition of Kmart and its Subsidiaries as at such date and the consolidated results of the operations of Kmart and its Subsidiaries for the nine-month period ended on such date, all in accordance with GAAP consistently applied (subject to year-end audit adjustments). Except as reflected in the most recent financial statements referred to in this paragraph, or in the notes thereto, neither Kmart nor any of its Subsidiaries has, as of the date of such financial statements, any liabilities (whether absolute, accrued, contingent and whether or not due) which would reasonably be expected to be material to the Borrowers and their Subsidiaries, taken as a whole.
(g) Since the date the Registration Statement was declared effective by the SEC, there has been no Material Adverse Change.
(h) No informationThe Pro Forma Financial Information has been prepared in accordance with GAAP, exhibit or report furnished with appropriate pro forma adjustments made in accordance with Regulation S-X promulgated by or on behalf of any Loan Party to any Agent or any Lender in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered)SEC.
(i) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower's knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, governmental agency or arbitrator that would reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(j) Following application of the proceeds of each Advance hereunderand the issuance of each Letter of Credit, Margin Stock will constitute less not more than 25% 25 percent of the value of those the assets of any Borrower which are subject to any limitation the Borrowers and their respective Subsidiaries on sale, pledge or other disposition hereundera consolidated basis will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(jk) Neither any No Loan Party nor any of its Subsidiaries is an “"investment company”", or a company "controlled" by an “affiliated person” of, or “promoter” or “principal underwriter” for, an “"investment company”", as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(l) Except All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any assessment received by Holdings, the Borrowers or any Subsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or other governmental charges have been made in accordance with, and to the extent required by, GAAP.
(m) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent or any Lender (including the Information Memorandum) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that Holdings and the Borrowers make no representations or warranties with respect to any and all events and conditions under clauses projections or other non-factual information contained in such information.
(i) through (v) below of this paragraph (l) Each Group Member has title in fee simple to, or a valid leasehold interest in, all its real property, and good title to, or a valid leasehold interest in, all its other property except as, in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Inventory, Credit Card Account Receivable or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(o) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) Neither any Loan Party nor any ERISA Affiliate has incurred each Group Member owns, or is reasonably expected licensed to incur use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Withdrawal Liability to Person challenging or questioning the use of any Multiemployer PlanIntellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(iip) With respect Neither a Reportable Event nor an "accumulated funding deficiency" (within the meaning of Section 412 of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to each scheme the date on which this representation is made or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and deemed made with respect to any Plan, and each employee benefit plan Plan has complied in all material respects with the applicable provisions of ERISA and the Internal Revenue Code. No termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. The present value of all accrued benefits under each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Plan allocable to such accrued benefits by an amount that is not would reasonably be expected to have a Material Adverse Effect. Neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan that has resulted or could reasonably be expected to result in a material liability under ERISA, and neither the Borrowers nor any Commonly Controlled Entity may reasonably be expected to become subject to United States law maintained any material liability under ERISA if Holdings, any Borrower or contributed any such Commonly Controlled Entity were to by withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(q) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Loan Party Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to which any Subsidiary Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(r) The Guarantee and Collateral Agreement is effective to create in favor of the Agent, for the benefit of the Lenders, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. When financing statements and other filings specified on Schedule 5.01(r) in appropriate form are filed in the offices specified on Schedule 5.01(r), the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations (as defined in the Guarantee and Collateral Agreement), in each case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a)).
(s) Each Loan Party may have liability under applicable local law (a “Foreign Plan”):is, and after giving effect to the Merger and the incurrence of all indebtedness and obligations being incurred in connection herewith and therewith will be and will continue to be, Solvent.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents Holdings and warrants the Borrowers hereby jointly and severally represent and warrant as follows:
(a) Each Loan Party and each of its Material Subsidiaries (i) is duly organized or formedorganized, validly existing and, to the extent such concept applies, and in good standing under the laws of the jurisdiction of its incorporation or formation, organization and (ii) is duly qualified and in good standing as a foreign corporation or other entity in each other jurisdiction in which it owns or leases property or in which compliance with all Requirements of Law except to the conduct of its business requires it to so qualify or be licensed except where extent that the failure to so qualify or comply therewith could not, in the aggregate, reasonably be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely expected to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by each Loan Party of each the Loan Document Documents to which it is or is to be a party party, and the consummation of the transactions contemplated by the Loan Documentshereby or thereby, are within such Loan Party’s corporate powers, have been duly authorized by all necessary corporate organizational action, and do not contravene (i) contravene the charter or by-laws or other organizational or governing documents of such Loan Party’s constitutional documents, Party or (ii) violate law or any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument contractual restriction binding on or affecting any Loan Party, any except, for purposes of its Subsidiaries or any of their properties or this clause (iv) except for ii), to the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any extent 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 contravention would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(dc) 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, recordation, filing or delivery and performance by any Loan Party of any Loan Document to which it is or is to be a party that has not already been obtained if the failure to obtain such authorization, approval or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are action could reasonably be expected to result in full force and effecta Material Adverse Effect.
(ed) This Agreement has been, and each other Each Loan Document when delivered hereunder will have been, has been duly executed and delivered by each Loan Party party thereto. This Agreement isconstitutes, and each other Loan Document when delivered hereunder will beconstitute upon execution, the legal, valid and binding obligation of each Loan Party party thereto, thereto enforceable against such Loan Party in accordance with its terms, respective terms subject to the effect of any applicable bankruptcy, insolvency and insolvency, reorganization or moratorium or similar laws affecting the rights of general application relating to creditors’ rights creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(f) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to such Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the transactions contemplated by the Loan Documents.
(ge) The Consolidated consolidated balance sheet of the Parent Holdings and its Subsidiaries as at December January 31, 20042015, and the related Consolidated consolidated statements of income and of cash flows of the Parent Holdings and its Subsidiaries for the Fiscal Year fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lenderthe Agent, fairly present the Consolidated consolidated financial condition of the Parent Holdings and its Subsidiaries as at such date and the Consolidated consolidated results of the operations of the Parent Holdings and its Subsidiaries for the Fiscal Year period ended on such date, all in accordance with GAAP applied on a consistent basis, and, as of the Effective Date, since December consistently applied.
(f) Since January 31, 20042015, there has been no event or circumstance, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse ChangeEffect.
(g) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, which is pending or, to Holdings or any Borrower’s knowledge, threatened affecting Holdings, the Borrowers or any of their respective Subsidiaries before any court, Governmental Authority or arbitrator that would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect other than as reported in filings with the SEC made prior to the date hereof.
(h) 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 and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as at the date it was dated (or if not dated, so delivered).
(i) Following application of the proceeds of each Advance hereunderAdvance, Margin Stock will constitute less FILO Loan, and the Term Loan and the issuance of each Letter of Credit, not more than 25% five (5%) percent of the value of those the assets of any Borrower which are subject to any limitation the Borrowers and their respective Subsidiaries on sale, pledge or other disposition hereundera consolidated basis will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(ji) Neither any No Loan Party nor any of its Subsidiaries is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company”, as such terms are defined in within the meaning of the Investment Company Act of 1940, as amended. Neither .
(j) All United States Federal income tax returns and all other material tax returns which are required to be filed have been filed by or on behalf of Holdings, the making of Borrowers and their respective Subsidiaries, and all taxes due with respect to Holdings, the Borrowers and their respective Subsidiaries pursuant to such returns or pursuant to any Advancesassessment received by Holdings, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act Borrowers or any ruleSubsidiary have been paid except to the extent permitted in Section 6.01(b). The charges, regulation accruals and reserves on the books of Holdings, the Borrowers and their Subsidiaries in respect of taxes or order of other governmental charges have been made in accordance with, and to the Securities and Exchange Commission thereunderextent required by, GAAP.
(k) All written factual information heretofore furnished by Holdings, the Borrowers or their Subsidiaries to the Agent, any Co-Collateral Agent or any Lender (including the Perfection Certificate) for purposes of or in connection with this Agreement or any other Loan Document, taken as a whole, was true and correct in all material respects on the date as of which such information was stated or certified, provided that with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(i) Each Loan Party ishas title in fee simple to, individually or a valid leasehold interest in, all its real property, and together with good title to, or a valid leasehold interest in, all its Subsidiariesother property necessary for the conduct of its business and except as, Solvent.
(l) Except to the extent that any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are aggregate, would not reasonably be expected to have a Material Adverse Effect,, and (ii) no Inventory, Credit Card Account Receivable, DC or Related Intellectual Property is subject to any Lien except as permitted by Section 6.02(a).
(m) Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (i) each Loan Party owns, or is licensed to use, all Intellectual Property necessary for the conduct of its business as currently conducted; (ii) no material claim has been asserted and is pending by any Person challenging or questioning the use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor do Holdings or the Borrowers know of any valid basis for any such claim; and (iii) the use of Intellectual Property by each Group Member does not infringe on the rights of any Person in any material respect.
(n) Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, (i) neither a Reportable Event nor a failure to meet minimum required contributions (in accordance with Section 430 or any prior applicable section of the Internal Revenue Code or Section 302 of ERISA) has occurred during the five year period prior to the date on which this representation is made or deemed made with respect to any Plan, (ii) each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other applicable federal or state laws, and (iii) no termination of a Single Employer Plan has occurred. Except as set forth on Schedule 5.01(n), no Lien imposed under the Internal Revenue Code or ERISA exists on account of any Plan, and no Lien in favor of the PBGC or a Plan has arisen, during such five-year period. Each Single Employer Plan that is intended to qualify under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the United States Internal Revenue Service (the “IRS”) and, to the best knowledge of Holdings and the Borrowers, nothing has occurred which would cause the loss of, such qualification. Except as set forth on Schedule 5.01(n) or as would not reasonably be expected to result in a Material Adverse Effect, the Loan Parties and each ERISA Affiliate have made all required contributions to each Plan subject to Section 430 of the Internal Revenue Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 430 of the Internal Revenue Code has been made with respect to any Plan. There are no pending or, to the best knowledge of Holdings and the Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary duty rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect. No ERISA Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected to result in a Material Adverse Effect. Neither any Loan Party nor any ERISA Affiliate has incurred incurred, or is would reasonably be expected to incur incur, any Withdrawal Liability liability under Title IV of ERISA with respect to any Pension Plan, other than premiums due and not delinquent under Section 4007 of ERISA or as would not reasonably be expected to have a Material Adverse Effect; neither any Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and, to the knowledge of the Borrowers, no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer PlanPlan except as would not reasonably be expected to have a Material Adverse Effect; and neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that would reasonably be expected to be subject to Sections 4069 or 4212(c) of ERISA. Except as would not reasonably be expected to have a Material Adverse Effect, neither Holdings, the Borrowers nor any Commonly Controlled Entity has had a complete or partial withdrawal (as such terms are defined in Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan that has resulted or would reasonably be expected to result in a liability under ERISA. No such Multiemployer Plan is in Reorganization or Insolvent except as would not reasonably be expected to result in aggregate liability to Holdings and its Subsidiaries of $100,000,000 or more.
(o) Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, no Group Member (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) With respect has become subject to each scheme or arrangement mandated by a government other than the United States any Environmental Liability, (a “Foreign Government Scheme or Arrangement”iii) and has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.
(p) The Guarantee and Collateral Agreement is effective to create in favor of the Co-Collateral Agents, for the benefit of the Credit Parties, a legal, valid and enforceable security interest in the Collateral described therein and proceeds thereof. When financing statements and other filings specified on Schedule 5.01(p) in appropriate form are filed in the offices specified on Schedule 5.01(p), the Guarantee and Collateral Agreement shall, to the extent a security interest therein can be perfected by filing a UCC financing statement, constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the Obligations, in each employee benefit plan case prior and superior in right to the Lien or claim of any other Person (except Liens permitted by Section 6.02(a) which by operation of law would have priority over the Liens securing the Obligations).
(q) The Loan Parties, taken as a whole, are, and after giving effect to the incurrence of all Debt and obligations incurred in connection herewith will be, Solvent.
(r) The properties of the Loan Parties are insured as required pursuant to Section 6.01(c) hereof. Each insurance policy required to be maintained by the Loan Parties pursuant to Section 6.01(c) is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
(s) As of the Third Amendment Effective Date: (1) except as set forth in the Perfection Certificate, there are no outstanding rights to purchase any equity interests in any Subsidiary of a Loan Party, and (2) the copies of the organization and governing documents of each Loan Party and each amendment hereto provided pursuant to Section 4.01are true and correct copies of each such document, each of which is valid and in full force and effect.
(t) As of the Third Amendment Effective Date, except as would not subject reasonably be expected to United States law maintained have individually or contributed to by in the aggregate, a Material Adverse Effect, (a) there are no strikes, lockouts, slowdowns or other material labor disputes against any Loan Party or any Subsidiary thereof pending or, to the knowledge of Holdings or any Borrower, threatened, (b) the hours worked by and payments made to employees of the Loan Parties comply with respect to the Fair Labor Standards Act and any other applicable federal, state, local or foreign law dealing with such matters, (c) all payments due from any Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party, on account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in accordance with GAAP as a liability on the books of such Loan Party. Except as set forth on Schedule 5.01(t) (as updated by the Borrowers from time to time) (i) no Loan Party or any Subsidiary is a party to or bound by any collective bargaining agreement, management agreement or any material bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (excluding in each case individual employment agreements) and (ii) no employee of a Loan Party is also an employee of the Permitted Holder. There are no representation proceedings pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with the National Labor Relations Board, and no labor organization or group of employees of any Loan Party may have liability or any Subsidiary has made a pending demand for recognition, in each case which would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect. There are no complaints, unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or complaints against any Loan Party or any Subsidiary pending or, to the knowledge of Holdings or any Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries which would, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect. The consummation of the transactions contemplated by the Loan Documents will not give rise to any right of termination or right of renegotiation on the part of any union under applicable local law any collective bargaining agreement to which any Loan Party or any of its Subsidiaries is bound, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(u) No broker or finder brought about the obtaining, making or closing of the Advances or the Term Loan or transactions contemplated by the Loan Documents, and, other than amounts payable pursuant to the Fee Letters, no Loan Party or Affiliate thereof has any obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.
(v) No Loan Party has any obligation to any Permitted Holder with respect to any consulting, management or similar fee; provided, that, for the avoidance of doubt, the foregoing shall not apply to (i) any arrangement disclosed in Holdings' annual report on form 10-K for the fiscal year ended January 31, 2015; (ii) any employment arrangement between any Loan Party and an individual Person who is also an employee of a “Foreign Plan”):Permitted Holder, so long as such employment arrangements are (x) on terms that are fair and reasonable and comparable to terms provided to employees in comparable positions for companies of a comparable size and no less favorable to such Loan Party than it would obtain in a comparable arm's length transaction with a Per
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