Representations and Warranties of the Borrower. The Borrower represents and warrants as follows: (a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties. (b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect. (d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). (e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower. (f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect. (g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both. (h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx. (i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended. (j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan. (k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect. (l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied. (m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved. (n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects. (o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions. (p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP. (q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 4 contracts
Samples: Credit Agreement (Entergy Mississippi, LLC), Credit Agreement (Entergy Mississippi, LLC), Credit Agreement (Entergy Mississippi, LLC)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, organization and (ii) is duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2011 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates date and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure DocumentsBorrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011, since December 31, 20232011, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure DocumentsBorrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedPlan.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Samples: Credit Agreement (Entergy Texas, Inc.), Credit Agreement (Entergy Texas, Inc.), Credit Agreement (Entergy Texas, Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower No Default or Event of Default has occurred and is (i) duly organizedcontinuing, validly existing and all of the representations set forth in Article 5 of the Loan Agreement and in good standing under the laws other Loan Documents are true and complete as of the jurisdiction date of its organizationthis Amendment (except any such representation which is as of a specified date, which is accurate and (ii) duly qualified to do business complete as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwisedate), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it isthis Amendment and the agreements, or is to become, a party, instruments and other documents executed in connection herewith (i) are within the Borrower’s organizational powerscorporate power, (ii) have been duly authorized by all necessary organizational action and do or proper actions of or pertaining to the Borrower (including the consent of directors, officers, or shareholders, as applicable), (iii) are not contravene in contravention of (iA) any agreement or indenture to which the Borrower is a party or by which the Borrower is bound, (B) the Borrower’s organizational documentsCharter Documents, (iiC) law applicable to any provision of law, or (D) any order, writ, judgment, injunction, or decree of any court of competent jurisdiction binding on the Borrower or its properties, property and (iv) do not require the consent or (iii) approval of any contractual Governmental Unit or legal restriction binding on or affecting any other Person that has not been obtained and furnished to the Borrower or its propertiesLender.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Person is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) Amendment or any of the agreements, instruments and other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is documents executed in full force and effectconnection herewith.
(d) This Agreement Amendment and the other Loan Documents to which it is, or is to become, a party have been or will be (Agreement as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, amended hereby constitute the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable their respective terms except as enforceability may be limited by (i) bankruptcy, reorganization, rearrangement, moratorium insolvency or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan generally and (ii) neither the Borrower nor any general principles of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedequity.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Samples: Loan and Security Agreement (Hooper Holmes Inc), Loan and Security Agreement (Hooper Holmes Inc), Loan and Security Agreement (Hooper Holmes Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower Each Loan Party is (i) duly organized, a corporation validly organized and existing and in good standing under the laws of the jurisdiction state of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each jurisdiction in which where the nature of its business makes such qualification necessary and where the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect reasonably be expected to have a Materially Adverse Effect and has full power and authority to own and hold under lease its businessproperty and conduct its business substantially as presently conducted by it. Each Loan Party has full power and authority to enter into and to perform its obligations under this Agreement and each Loan Document to which each is a party and to obtain the Advances hereunder, condition (financial or otherwise), operations or propertiesin the case of the Borrower.
(b) The execution, execution and delivery by each Loan Party of this Agreement and each Loan Document executed by it and the performance by each of its respective obligations hereunder and thereunder and the borrowings hereunder by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and corporate action, do not contravene require any Approval, do not and will not conflict with, result in any violation of, or constitute any default under, any provision of any Organic Document or material Contractual Obligation of such Loan Party (ior any other material Contractual Obligation) the Borrower’s organizational documents, (ii) or any present law or governmental regulation or court decree or order applicable to any Loan Party and will not result in or require the Borrower creation or its properties, or (iii) imposition of any contractual or legal restriction binding on or affecting Lien in any of their respective properties pursuant to the Borrower or its propertiesprovisions of any Contractual Obligation.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon each Loan Document executed by any Loan Party will on the due execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower such Loan Party enforceable against the Borrower in accordance with its terms, subject, howeveras to enforcement, only to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or other similar laws at the time in effect affecting generally the enforcement enforceability of creditors’ the rights of creditors generally, and remedies and to by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equitable principles.
(ed) The All balance sheets, statements of operations, of total owners' equity and of changes in cash flows and other financial information of the Borrower and the Consolidated Subsidiaries which have been or shall hereafter be furnished by or on behalf of the Borrower for the purposes of or in connection with this Agreement or any transaction contemplated hereby pursuant to Section 5.01(a)(i) or Section 5.01(a)(ii) (except Section 5.01(a)(i)(C)) have been or will be prepared in accordance with GAAP consistently applied throughout the periods involved (except as disclosed therein), and, in the case of information relating to coal reserves, have been or will be prepared in accordance with all relevant rules and regulations promulgated by the SEC, as in effect from time to time, and do or will present fairly the consolidated financial condition of the corporations covered thereby as at the dates thereof and the results of their operations for the periods then ended and the consolidated statements of earnings, of operations and of total owners' equity, for each of the fiscal periods then ended, of the Borrower and the Consolidated Subsidiaries (or, in the case of any such balance sheets or statements prepared prior to the date hereof, of the Borrower and its Consolidated Subsidiaries). Since December 31, 2001, there has been no occurrence which, individually or in the aggregate, would reasonably be expected to have a Materially Adverse Effect. Except as disclosed in Item 4.01(f) ("Litigation") of the Disclosure Schedule, neither the Borrower nor the Consolidated Subsidiaries have any material contingent liabilities (including any liability pursuant to the Federal Black Lung Benefits Act of 1972, as in effect from time to time) not provided for or disclosed in the financial statements of the Borrower and its the Consolidated Subsidiaries as of December 31, 2023, and for the year ended most recently delivered by or on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements behalf of the Borrower and its Subsidiaries as of March 31, 2024, and for to the fiscal quarter ended on such date, as set forth Lenders.
(e) Neither the Borrower nor any Subsidiary is in default,
(i) in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies payment of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, (or in the case performance of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed any material obligation applicable to) any Indebtedness outstanding in a principal amount exceeding $10,000,000 in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition aggregate; or
(ii) under any law or operations of the Borrowergovernmental regulation or court decree or order which would reasonably be expected to have a Materially Adverse Effect.
(f) Except as disclosed described in Item 4.01(f) ("Litigation") of the Disclosure DocumentsSchedule, there is no pending litigation, arbitration or threatened action governmental investigation or proceeding affecting against the Borrower or any Subsidiary or to which any of its Subsidiaries before the properties of any courtthereof is subject is pending or, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could the knowledge of the Borrower, threatened which would reasonably be expected to result in such a Material Adverse Effectliability in excess of $10,000,000.
(g) No event has occurred and Neither the Borrower nor any Subsidiary is continuing that constitutes an Event engaged principally, or as one of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more less than 25% of the value assets of each consists of margin stock. Proceeds of Advances hereunder will be used in compliance with Regulation U of the assets F.R.S. Board or any regulations substituted therefor. Terms for which meanings are provided in Regulation U of the Borrower and its Subsidiaries subject F.R.S. Board or any regulations substituted therefor, as from time to the restrictions of time in effect, are used in this Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxwith such meanings.
(ih) The Neither the Borrower nor any Subsidiary is not an “"investment company” or a company “controlled” by an “investment company” " within the meaning of the Investment Company Act of 1940, as amended, or a "holding company", or a "subsidiary company" of a "holding company", or an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(i) Neither the Borrower nor any Subsidiary is a party or subject to any Contractual Obligation or Organic Document which would reasonably be expected to have a Materially Adverse Effect.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its all Subsidiaries have filed all federal, state and other Tax tax returns and reports required by law to be filed, have been filed by them and have paid all federal, state taxes and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payablethereby shown to be owing, except (a) Taxes that that any such taxes or charges which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP shall have been set aside on their books.
(k) During the twelve-consecutive-month period prior to the Effective Date and prior to the date of any Borrowing hereunder, (a) no steps have been taken to terminate any Pension Plan the assets of which are insufficient to satisfy all benefit liabilities thereunder (as defined in section 4001(a)(16) of ERISA) for which the Borrower or any Subsidiary could be held liable, (b) no contribution failure has occurred with respect to any Pension Plan sufficient to give rise to a Lien under section 302(f) of ERISA and (c) none of the Borrower, any Subsidiary or any member of the Controlled Group of any of them has incurred or is reasonably likely to incur any Withdrawal Liability to any Multiemployer Plan. No condition exists or event or transaction has occurred with respect to any Pension Plan which might result in the incurrence by the Borrower or any Subsidiary of any material liability, fine or penalty. Neither the Borrower nor any Subsidiary has any contingent liability with respect to any post-retirement benefit under a Welfare Plan, other than liability for continuation coverage described in Part 6 of Subtitle B of Title I of ERISA.
(l) The Borrower has no other Subsidiaries or Significant Subsidiaries except those identified in Item 4.01(l) ("Existing Subsidiaries and Significant Subsidiaries") of the Disclosure Schedule or those acquired or created subsequent to the date hereof.
(m) The Borrower and each Subsidiary owns and possesses all such patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service marks, service xxxx rights and copyrights as the Borrower considers necessary for the conduct of the businesses of the Borrower or such Subsidiary as now conducted without any infringement upon rights of others which would reasonably be expected to have a Materially Adverse Effect. There is no individual patent or patent license used by the Borrower or any Subsidiary in the conduct of its business the loss of which would reasonably be expected to have a Materially Adverse Effect.
(n) The Borrower and each Subsidiary has good and marketable title to or good leasehold interests in all of its material properties and assets, real and personal, of any nature whatsoever, free and clear of all Liens except as permitted pursuant to Section 5.02(b).
(o) All factual information heretofore or contemporaneously furnished by the Borrower to the Agent or the Lenders in connection with execution and delivery of this Agreement and the various transactions contemplated hereby, as supplemented from time to time and when taken as a whole, to the best of the Borrower's knowledge, has been, and all other such factual information hereafter furnished by the Borrower or any Subsidiary, as supplemented from time to time and when taken as a whole, will be, true and accurate in every material respect on the date as of which such information is dated or certified and as of the Effective Date and not incomplete by omitting to state any material fact necessary to make such information not misleading. All projections and pro forma financial information contained in any materials furnished by the Borrower or any Subsidiary to the Lender are based on good faith estimates and assumptions by the management of the Borrower or the applicable Subsidiary, it being recognized by the Lenders, however, that projections and statements as to future events are not to be viewed as fact and that actual results during the period or periods covered by any such projections or statements may differ from the projected results and that the differences may be material.
(i) No facility or property (including underlying groundwater) owned or leased by the Borrower or any Significant Subsidiary is out of compliance with any Environmental Law to the extent that such noncompliance, either singly or in the failure aggregate, has or could reasonably be expected to do so have a Materially Adverse Effect;
(ii) There are no pending or threatened
(A) claims, complaints, notices or requests for information received by the Borrower or any Significant Subsidiary with respect to any alleged violation of any Environmental Law, or
(B) complaints, notices or inquiries to the Borrower or any Significant Subsidiary regarding potential liability under any Environmental Law, in each case, which singly, or in the aggregate, have or could notreasonably be expected to have a Materially Adverse Effect;
(iii) There have been no Releases of Hazardous Materials at, on or under any property now or previously owned or leased by the Borrower or any Significant Subsidiary that, singly or in the aggregate, have, or could reasonably be expected to have, a Materially Adverse Effect;
(iv) The Borrower and the Significant Subsidiaries have been issued and are in material compliance with all material permits, certificates, approvals, licenses and other authorizations relating to environmental matters and necessary or desirable for their businesses;
(v) No property now or previously owned or leased by the Borrower or any Significant Subsidiary is listed or proposed for listing (with respect to owned property only) (i) on the CERCLIS or on any similar state list of sites requiring investigation or clean-up to the extent that such listing relates to liabilities, individually or in the aggregate, that could reasonably be expected to have a Material Materially Adverse Effect., or (ii) on the National Priorities List pursuant to CERCLA;
(vi) There are no underground storage tanks, active or abandoned, including petroleum storage tanks, on or under any property now or previously owned or leased by the Borrower or any Significant Subsidiary that, singly or in the aggregate, have, or could reasonably be expected to have, a Materially Adverse Effect;
(vii) Neither the Borrower nor any Significant Subsidiary has directly transported or directly arranged for the transportation of any Hazardous Material to any location which is listed or proposed for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list or which is the subject of federal, state or local enforcement actions or other investigations which may lead to material claims against the Borrower or such Significant Subsidiary for any remedial work, damage to natural resources or personal injury, including claims under CERCLA that, either singly or in the aggregate, have, or could reasonably be expected to have, a Materially Adverse Effect;
(viii) There are no polychlorinated biphenyls or friable asbestos present at any property now or previously owned or leased by the Borrower or any Significant Subsidiary that, singly or in the aggregate, have, or could reasonably be expected to have, a Materially Adverse Effect;
(ix) No conditions exist at, on or under any property now or previously owned or leased by the Borrower or any Significant Subsidiary which, with the passage of time, or the giving of notice or both, would give rise to liability under any Environmental Law that, either singly or in the aggregate, have, or could reasonably be expected to have, a Materially Adverse Effect; and
(x) Neither the Borrower nor any Subsidiary owns or leases any "industrial establishment" (as such term is defined in the New Jersey Environmental Cleanup Responsibility Act, N.J.
Appears in 2 contracts
Samples: Credit Agreement (Consol Energy Inc), 364 Day Credit Agreement (Consol Energy Inc)
Representations and Warranties of the Borrower. The In order to induce the Administrative Agent and the Required Lenders to enter into this Agreement, the Borrower hereby represents and warrants as followsthat:
(a) a. The Borrower is (i) duly organizedhas the requisite power and authority to execute, validly existing deliver and in good standing under carry out the laws terms and provisions of this Agreement and has taken all necessary corporate or other organizational action to authorize the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which . The Borrower has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by itthis Agreement, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights generally and remedies and to by general equitable principles of equity (regardless of whether enforceability enforcement is considered in a proceeding sought by proceedings in equity or at law).
b. The execution, delivery and performance by the Borrower of this Agreement do not and will not (ei) The consolidated financial statements contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Borrower and its Subsidiaries as under, any indenture, mortgage, deed of December 31trust, 2023loan, and for the year ended on such datepurchase or credit agreement, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such datelease, as filed with the SECcorporate charter or limited partnership or limited liability company agreement, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of or any other agreement or instrument to which the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of is bound or by which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, governmental agency arbitrator or arbitrator that Governmental Authority applicable to the Borrower or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Borrower, which in the case of any of the foregoing clauses (i) through (iii), individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) c. No event consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Borrower of this Agreement.
d. No Default or Event of Default has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since on the date of such Schedule B there has been no change in such funding status that could reasonably be expected hereof or after giving effect to result in a Material Adverse Effectthis Agreement.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (InfraREIT, Inc.), Credit Agreement (InfraREIT, Inc.)
Representations and Warranties of the Borrower. The In order to induce the Administrative Agent and the Lenders to enter into this Agreement, the Borrower hereby represents and warrants that as followsof the Effective Date:
(a) a. The Borrower is (i) duly organizedhas the requisite power and authority to execute, validly existing deliver and in good standing under carry out the laws terms and provisions of this Agreement and has taken all necessary corporate or other organizational action to authorize the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which . The Borrower has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by itthis Agreement, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights generally and remedies and to by general equitable principles of equity (regardless of whether enforceability enforcement is considered in a proceeding sought by proceedings in equity or at law).
b. The execution, delivery and performance by the Borrower of this Agreement does not and will not (ei) The consolidated financial statements contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Borrower and its Subsidiaries as under, any indenture, mortgage, deed of December 31trust, 2023loan, and for the year ended on such datepurchase or credit agreement, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such datelease, as filed with the SECcorporate charter or limited partnership or limited liability company agreement, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of or any other agreement or instrument to which the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of is bound or by which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, governmental agency arbitrator or arbitrator that Governmental Authority applicable to the Borrower or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Borrower, which in the case of any of the foregoing clauses (i) through (iii), individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. There has been no change .
c. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Borrower of this Agreement.
d. The representations and warranties of the Borrower contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any matter disclosed document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Effective Date, except to the extent that such filings that could reasonably representations and warranties specifically refer to an earlier date, in which case they shall be expected true and correct as of such earlier date, and except the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to result in such a Material Adverse Effectrefer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Credit Agreement.
(g) e. No event Default or Event of Default has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since on the date of such Schedule B there has been no change in such funding status that could reasonably be expected hereof or after giving effect to result in a Material Adverse Effectthis Agreement.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (InfraREIT, Inc.)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants to the Agent and the Lenders as follows:
(a) The Borrower is (i) a limited liability company duly organizedformed, validly existing and in good standing under the laws of the jurisdiction of set forth in Schedule III hereto, has all requisite power and authority to carry on its organizationbusiness as now conducted, and (ii) is duly qualified to do business as a foreign organization business, and is in each good standing, in every jurisdiction in which where the nature of the its business conducted or the property owned, operated or leased by requires it requires such qualification, except where failure to be so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesqualified.
(b) The execution, delivery and performance by the Borrower of each Loan Document the Transaction Documents and the other documents to which be delivered by it ishereunder, or is to becomeincluding the Borrower’s use of the proceeds, a party, (i) are within the Borrower’s organizational limited liability company powers, (ii) have been duly authorized by all necessary organizational action and limited liability company action, (iii) do not contravene (i1) the Borrower’s organizational documentscertificate of formation or Operating Agreement, (ii2) law any law, rule or regulation applicable to the Borrower or its propertiesBorrower, or (iii3) any contractual or legal restriction binding on or affecting the Borrower or its propertiesproperty or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the interest created pursuant to this Agreement). Each of the Transaction Documents has been duly executed and delivered by the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) the Transaction Documents or any other Loan Document document to which it is, or is to become, a partybe delivered thereunder, except for the FERC Authorization, filing of UCC financing statements which has been duly obtained, and is in full force and effectare referred to therein.
(d) This Agreement and Each of the other Loan Transaction Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, investigation or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably which may materially adversely affect the financial condition or operations of the Borrower or the ability of the Borrower to perform its obligations under the Transaction Documents, or which purports to affect the legality, validity or enforceability of the Transaction Documents.
(f) No proceeds of any Loan will be expected used (i) to have acquire any equity security of a Material Adverse Effect. There has been no change in class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or (ii) for the purpose, whether immediate, incidental or ultimate, of buying or carrying any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect“margin stock” within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System of the United States.
(g) The Borrower is the legal and beneficial owner of the Collateral free and clear of any Adverse Claim and each document conveying such ownership interest does contain any provisions restricting the ability of the Agent or the Lenders from exercising its rights as provided by the Transaction Documents. No effective financing statement or other instrument similar in effect covering the Collateral is on file in any recording office, except those filed in favor of the Agent relating to this Agreement and those filed by the Borrower pursuant to the Sale and Contribution Agreement.
(h) The principal place of business and chief executive office of the Borrower and the office where the Borrower keeps its records are located at the address or addresses referred to in Section 5.01(b). The Borrower is located in the jurisdiction of organization set forth in Schedule III hereto for purposes of Section 9-307 of the UCC as in effect in the State of New York; and the office in the jurisdiction of organization of the Borrower in which a UCC financing statement is required to be filed in order to perfect the security interest granted by the Borrower hereunder is set forth in Schedule III hereto (in each case as such Schedule III may be amended from time to time pursuant to Section 5.01(b)).
(i) The Borrower is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act.
(j) The Borrower is not known by and does not use any tradename or doing-business-as name.
(k) The Borrower was formed on November 13, 2007 and the Borrower did not engage in any business activities prior to the date of this Agreement. The Borrower has no Subsidiaries.
(i) The fair value of the property of the Borrower is greater than the total amount of liabilities, including contingent liabilities, of the Borrower, (ii) the present fair salable value of the assets of the Borrower is not less than the amount that will be required to pay all probable liabilities of the Borrower on its debts as they become absolute and matured, (iii) the Borrower does not intend to, and does not believe that it will, incur debts or liabilities beyond the Borrower’s abilities to pay such debts and liabilities as they mature and (iv) the Borrower is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which the Borrower’s property would constitute unreasonably small capital.
(m) The Borrower has (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns and (iii) paid or made adequate provision for the payment of all taxes, assessments and other governmental charges (other than any tax, assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles).
(n) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Incipient Event of Default but for the requirement that notice be given or time elapse or bothDefault.
(ho) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockcompliance with all laws, regulations and no proceeds orders of any Extension of Credit will be used Governmental Authority applicable to purchase it or carry any Margin Stock its property and all indentures, agreements and other instruments binding upon it or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxproperty.
(ip) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) disclosed to the most recent annual report (Form 5500 Series) with respect Agent and the Lenders all agreements, instruments and corporate or other restrictions to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, it is complete and accurate and fairly presents the funding status of such ERISA Plansubject, and since all other matters known to it, that, individually or in the date of such Schedule B there has been no change in such funding status that aggregate, could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) . None of the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and statements, certificates or other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or Agent and the Lenders in connection with the Loan Documents negotiation of this Agreement and the transactions contemplated thereby, when considered in their totality together with the other Transaction Documents or delivered hereunder or thereunder (as modified or supplemented by other information set forth in the Borrower’s periodic reports filed as so furnished) contains any material misstatement of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAPmisleading.
(q) The Borrower has no Investments other than Permitted Investments.
(r) The Borrower has no Debt other than Debt created hereunder.
(s) Each Purchase Note is supported by a Purchase Letter of Credit from an Eligible Bank (as defined in the applicable Purchase Note).
(t) The Buyer is a United States person.
(u) Each Purchase Note represents a bona fide obligation of the related Buyer to pay the amounts stated therein and its Subsidiaries have filed each Purchase Letter of Credit represents a bona fide obligation of the related L/C Issuer to pay the amounts stated therein.
(v) Each Purchase Note and each Purchase Letter of Credit is in conformity in all federalmaterial respects with all applicable laws, state rules and other Tax returns regulations in effect as of the date of the Borrowing.
(w) Schedule I hereto accurately sets forth each Bank Account maintained by the Borrower (including a description thereof and reports required to be filedthe respective account number), the name of the respective bank with which the Bank Account is maintained, and the jurisdiction of the respective bank with respect to such Bank Account.
(x) The net proceeds of the Loans will be used by the Borrower to repay the Intercompany Note in full and any excess shall be used for general corporate purposes of the Borrower; provided that neither the Agent nor any Lenders shall have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) any responsibility as to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectuse of any of such proceeds.
Appears in 2 contracts
Samples: Term Loan Agreement (Temple Inland Inc), Term Loan Agreement (Temple Inland Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and is duly qualified to do business and is in good standing as a foreign corporation under the laws of each state in which the ownership of its properties or the conduct of its business makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect, and each Material Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted it is incorporated or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesotherwise organized.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it isDocument, or is to become, a partyand the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s organizational powers, corporate powers and have been duly authorized by all necessary organizational action corporate action. Each Loan Document has been duly executed and do not contravene (i) delivered by the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any Loan Document, other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has than such Governmental Approvals that have been duly obtained, obtained and is are in full force and effect, which as of the date hereof are as follows: Order issued January 25, 2022 by the PUCN in Docket No. 21-10026.
(d) This Agreement The execution, delivery and performance by Borrower of the other Loan Documents will not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with, or result in a breach of or constitute a default under, any contract, agreement, indenture or instrument to which it is, the Borrower or any of its Material Subsidiaries is to become, a party or by which any of its or their respective properties is bound or (iii) result in the creation or imposition of any Lien on the property of Borrower or any of its Material Subsidiaries other than Permitted Liens and Liens required under this Agreement, except to the extent such conflict, breach or default referred to in the preceding clause (ii), individually or in the aggregate, would not reasonably be expected to have been or will be a Material Adverse Effect.
(as the case may bee) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Each Loan Document will be, is the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or except as limited by bankruptcy and similar laws affecting generally the enforcement of creditors’ rights generally and remedies and to by the application of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrowerequitable principles.
(f) Except as disclosed The Borrower and each Material Subsidiary are in compliance with all Applicable Laws (including Environmental Laws), except to the Disclosure Documents, there extent that failure to comply would not reasonably be expected to have a Material Adverse Effect.
(g) There is no action, suit, proceeding, claim or dispute pending or, to the Borrower’s knowledge, threatened against or threatened action or proceeding affecting the Borrower or any of its Subsidiaries Material Subsidiaries, or any of its or their respective properties or assets, before any courtGovernmental Authority that, governmental agency individually or arbitrator that in the aggregate, could reasonably be expected to have a Material Adverse Effect. There has been is no change injunction, writ, preliminary restraining order or any other order of any nature issued by any Governmental Authority directing that any material aspect of the transactions expressly provided for in any matter of the Loan Documents not be consummated as herein or therein provided.
(h) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at December 31, 2021, and the related consolidated statements of income, cash flows and stockholders’ equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Administrative Agent and each Lender, present fairly in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such date, and the consolidated results of their operations and cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as may be disclosed in such filings therein).
(i) Since December 31, 2021, no event has occurred that could reasonably be expected to result in such have a Material Adverse Effect.
(gj) No event has occurred The Borrower and each Material Subsidiary have filed or caused to be filed all U.S. Federal and other material tax returns that are required by Applicable Law to be filed, and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property; other than (i) with respect to taxes the amount or validity of which is continuing currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or the applicable Material Subsidiary, as the case may be, or (ii) to the extent that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice failure to do so could not reasonably be given or time elapse or bothexpected to result in a Material Adverse Effect.
(hk) No ERISA Event has occurred other than as would not, either individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. There are no actions, suits or claims pending against or involving a Pension Plan (other than routine claims for benefits) or, to the knowledge of the Borrower or any of its ERISA Affiliates, threatened, that would reasonably be expected to be asserted successfully against any Pension Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate to have a Material Adverse Effect. No lien imposed under the Internal Revenue Code or ERISA on the assets of the Borrower or any of its ERISA Affiliates exists or is likely to arise with respect to any Pension Plan. The Borrower and each of its Subsidiaries have complied with foreign law applicable to its Foreign Plans, except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect.
(l) The Borrower is not engaged in the business of extending credit for the purpose of purchasing buying or carrying Margin Stock, and no proceeds of any Extension of Credit Loan will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing buying or carrying any Margin Stock. After applying Following the application of the proceeds of each any Extension of Credit, not more than 25% of the value of the assets of the Borrower and its the Material Subsidiaries that are subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.or
Appears in 2 contracts
Samples: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Each of the Borrower and its Subsidiaries is (i) an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualificationqualification necessary, except where such failure to so qualify would not materially adversely affect result in a Material Adverse Change. Each of the Borrower and its business, condition Subsidiaries has all requisite corporate (financial or otherwise), operations other applicable) powers and authority to own or propertieslease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower and, where applicable, each Subsidiary of this Agreement, each Loan Document and each Related Document to which it is, or is to become, a party, party are within the Borrower’s organizational or Subsidiary’s corporate (or other applicable) powers, have been duly authorized by all necessary organizational action and corporate (or other applicable) action, do not contravene (i) the Borrower’s organizational documentsor Subsidiary’s certificate of incorporation (or other applicable formation document or operating agreement), (ii) law any law, rule or regulation applicable to the Borrower or its properties, such Subsidiary or (iii) any contractual or legal restriction binding on or affecting the Borrower or such Subsidiary, and will not result in or require the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower or its propertiesSubsidiaries, except as provided in this Agreement and any other the Loan Document or Related Document.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Action is required for the due executionexecution or delivery by the Borrower or its Subsidiaires of this Agreement, delivery and any other Loan Document or any Related Document to which it is a party or for the performance by the Borrower or its Subsidiaries of this Agreement (including obtaining any Extensions of Credit its obligations under this Agreement) or , any other Loan Document or any Related Document to which it is, or is to become, a party, except for the FERC Authorization, party other than those which has have previously been duly obtained, and is are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, threatened appeal or other proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or appeal with respect thereto have expired.
(d) This Agreement and the other each Loan Documents Document and Related Document to which it is, the Borrower or any Subsidiary is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower or Subsidiary party thereto, enforceable against the Borrower or applicable Subsidiary in accordance with its termsterms subject to the effect of bankruptcy, subject, however, to any applicable bankruptcyinsolvency, reorganization, rearrangementfraudulent conveyance, moratorium or and other similar laws of general application affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)creditors generally.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or or, to the Borrower’s knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have has a reasonable possibility of resulting in a Material Adverse EffectChange.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2005, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, and the unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at June 30, 2006, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the six (6) months then ended, copies of which have been furnished to the Administrative Agent and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied, subject, solely in the case of unaudited consolidated balance sheets, to normal year end adjustments. There Since December 31, 2005, there has been no Material Adverse Change, or material adverse change in any matter disclosed in the facts and information regarding such filings that could reasonably be expected entities as represented to result in such a Material Adverse Effectthe Closing Date.
(g) No event has occurred The issuance of, and is continuing that constitutes an Event the existence of, the Letters of Default or that would constitute an Event Credit, the making of Default but for Loans and the requirement that notice be given or time elapse or bothother Extensions of Credit and the use of the proceeds thereof will comply with all provisions of applicable law and regulation in all material respects.
(h) The Neither the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of nor any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Subsidiary of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(i) Intentionally Deleted.
(j) Except as Neither the Borrower nor its Subsidiaries is engaged in the business of extending credit for the purpose of buying or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any drawing on the Letters of Credit, any Loan or any other Extension of Credit will be used to buy or carry any margin stock or to extend credit to others for the purpose of buying or carrying any margin stock.
(k) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan which reasonably could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Change. Since the actuarial valuation date specified in the most recent Schedule B (Actuarial Information) to the most recent annual report of Plans maintained by the Borrower (Form 5500 Series), if any, (i) with respect to each ERISA Plan, copies of which have there has been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents no Material Adverse Change in the funding status of such the Plans referred to therein and (ii) no “prohibited transaction” has occurred with respect thereto. Neither the Borrower nor any of its respective ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan.
(l) Except as set forth in the Disclosure Documents, the Borrower and its Subsidiaries are in compliance in all material respects with all applicable Federal, state and local statutes, rules, regulations, orders and other provisions of law relating to Hazardous Materials, air emissions, water discharge, noise emission and liquid disposal, and since other environmental, health and safety matters, other than those the date non-compliance with which would not result in a Material Adverse Change (taking into consideration all fines, penalties and sanctions that may be imposed because of such Schedule B there non-compliance) or on the ability of the Borrower to perform its obligations under this Agreement or any other Loan Document to which the Borrower is a party. Except as set forth in the Disclosure Documents, neither the Borrower nor any of its respective Subsidiaries has received from any Governmental Authority any notice of any material violation of any such statute, rule, regulation, order or provision.
(m) The Borrower and its Subsidiaries have filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, except to the extent that the Borrower or any such Subsidiary is diligently contesting any such taxes in good faith and by appropriate proceedings, and for which adequate reserves for payment thereof have been no change in established.
(n) No event has occurred or is continuing which constitutes a Default or an Event of Default, or which constitutes, or which with the passage of time or giving of notice or both would constitute, a default or event of default by the Borrower or Subsidiary thereof under any material agreement or contract, judgment, decree or order by which the Borrower or any of its respective properties may be bound or which would require the Borrower or Subsidiary thereof to make any payment thereunder prior to the scheduled maturity date therefore, where such funding status that default could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respectsChange.
(o) The As of the Closing Date, the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, each of its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge will be Solvent.
(p) The capitalization of the Borrower, its directors Borrower and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any each Significant Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the BorrowerBorrower consists of the Capital Stock, authorized, issued and outstanding, of such classes and series, with or without par value, described on Schedule II hereto. All such outstanding Capital Stock has been duly authorized and validly issued and are fully paid and nonassessable. Except as set forth in the Disclosure Documents, there are no outstanding warrants, subscriptions, options, securities, instruments or other rights of any director type or agent nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or permit the issuance of, Capital Stock of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAPare otherwise exercisable by any Person.
(q) The Borrower and each Subsidiary of the Borrower has good and marketable title to all assets and other property purported to be owned by it.
(r) None of the properties or assets of the Borrower is subject to any Lien, except Permitted Liens.
(s) All written information, reports and other papers and data produced by or on behalf of the Borrower and furnished to the Administrative Agent and the Lenders were, at the time the same were so furnished, complete and correct in all material respects. No document furnished or written statement made to the Administrative Agent or the Lenders by the Borrower in connection with the negotiation, preparation or execution of this Agreement or any other Loan Documents contains or will contain any untrue statement of a fact material to the creditworthiness of the Borrower or its Subsidiaries or omits or will omit to state a fact necessary in order to make the statements contained therein not misleading.
(t) The performance of this Agreement and the transactions contemplated herein will not affect the status of any Bonds as being exempt from Federal income tax under the Code.
(u) All Bonds have filed all federalbeen duly authorized, state authenticated, issued and other Tax returns delivered and reports required to be filedare the legal, valid and binding obligations of the issuer of such Bonds, and have paid all federalare not in default.
(v) The Borrower is not listed on the specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Asset Control, state Department of the Treasury (“OFAC”) pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001), and/or any other list maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other Taxes, assessments, fees and other governmental charges levied applicable Executive Orders or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) subject to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectsanction under an OFAC implemented regulation.
Appears in 2 contracts
Samples: Credit Agreement (South Jersey Industries Inc), Credit Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2017 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 20242018 and June 30, 2018 and for the fiscal quarter quarters ended on such datedates, as set forth in the Borrower’s Quarterly Report Reports on Form 10-Q for the fiscal quarter quarters ended on such datedates, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter quarters ended March 31, 20242018 and June 30, 2018, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232017, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedPlan.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Entergy New Orleans, LLC), Credit Agreement (Entergy New Orleans, LLC)
Representations and Warranties of the Borrower. The ---------------------------------------------- Borrower represents and warrants to the Banks as follows:
(a1) The Borrower is (i) is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction State of its organization, Delaware and (ii) duly either is qualified to do business as a foreign organization and in good standing in each jurisdiction in which where the nature ownership of its properties or the conduct of its business requires such qualification or is subject to no material liability or disability by reason of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to be so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesqualified in any such jurisdiction.
(b2) The Borrower has all corporate power and authority, governmental permits, licenses, consents, authorizations, orders and approvals and other authorizations as are necessary to carry on its business substantially as presently conducted except for such of the foregoing the absence of which would not, in the aggregate, subject the Borrower to any material liability or disability.
(3) The execution, delivery and performance of the Bank Credit Documents, and borrowings thereunder by the Borrower, are within its corporate power and authority and have been duly authorized by all necessary corporate proceedings.
(4) Neither such authorization nor the execution, delivery and performance by the Borrower of each Loan Document the Bank Credit Documents, nor any borrowing thereunder by the Borrower when made, will conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of any law or any regulation, order, writ, injunction or decree of any court or governmental authority or of the Certificate of Incorporation or By-Laws of the Borrower or result in the violation or contravention of, or the acceleration of any obligation under, or cause the creation of any Lien on any of the properties of the Borrower pursuant to the provisions of, any indenture, agreement or other instrument to which it isis a party or by which it is bound.
(5) Assuming their due execution by the Banks and the Agent, each of this Agreement and the Other Agreement constitutes a legal, valid and binding agreement of the Borrower, and the Notes (both as defined hereunder and under the Other Agreement), when duly executed on behalf of the Borrower and delivered in accordance with this Agreement and the Other Agreement, will constitute legal, valid and binding obligations of the Borrower (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or is other laws affecting creditors' rights generally from time to becometime in effect and to general principles of equity).
(b) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of December 31, 1996 and the related consolidated statements of income and changes in financial position for the 12 months ended that date, certified by Coopers & Xxxxxxx, copies of all of which have been delivered to the Banks, fairly present the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and the consolidated results of their operations and changes in financial position for such fiscal year, in conformity with GAAP consistently applied.
(c) The unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of March 31, 1997 and the related unaudited consolidated statements of income and changes in financial position for the fiscal quarter then ended, a partycopy of which has been delivered to each of the Banks, are within fairly present, in conformity with GAAP applied on a basis consistent with the financial statements referred to in paragraph (b) of this Section, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and changes in financial position for such fiscal quarter (subject to normal year-end adjustments).
(d) Except as disclosed in writing to the Banks prior to July 23, 1997, there has been no material adverse change since December 31, 1996 and prior to July 23, 1997, in the business, operations, affairs, assets, condition (financial or otherwise) or results of operations of the Borrower and its Consolidated Subsidiaries, considered as a whole.
(e) Except as disclosed in writing to the Banks prior to July 23, 1997, there is no action, suit or proceeding pending or, to the knowledge of the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on threatened against or affecting the Borrower or any of its propertiesSubsidiaries in any court or before or by any arbitrator, governmental department, agency or instrumentality (i) which is likely to have a material adverse effect upon the Borrower's ability to pay and perform its obligations under the Bank Credit Documents in accordance with their respective terms or (ii) which in any manner draws into question the validity of any of the Bank Credit Documents.
(cf) No authorization Default has occurred and is continuing.
(g) No consent, authorization, order or approval of (or filing or registration with) any governmental commission, board or other action by, and no notice to or filing with, any governmental regulatory authority or regulatory body (other than routine reporting requirements) is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium Bank Credit Documents or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied borrowings thereunder by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(fh) Except as disclosed Each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with respect to each Plan. No member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Code in respect of any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the Disclosure Documents, there is no pending imposition of a Lien or threatened action the posting of a bond or proceeding affecting other security under ERISA or the Borrower Code or (iii) incurred any liability under Title IV of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have ERISA other than a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject liability to the restrictions PBGC for premiums under Section 4007 of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxERISA.
(i) The Cross-Indemnification Agreement and the Tax Sharing Agreement, in the respective forms, with amendments, certified to the Banks pursuant to Section 3.01(iv), are in full force and effect in accordance with their respective terms except for (1) any amendments, modifications or waivers of the Tax Sharing Agreement which do not materially alter the rights and obligations of the Borrower thereunder which as a whole place the Borrower in the same (or more favorable) relative financial position with respect to the Parent which the Borrower would have been in if the Borrower were not consolidated with the Parent for purposes of filing federal, state or local or other income tax returns, (2) any amendments to the Cross- Indemnification Agreement for the purpose of placing the Borrower and the Parent in the same financial positions with respect to each other which they would have been in if the Borrower and the Parent were not members of the same ERISA Group, including the allocation of, and indemnification with respect to, assets and funded and unfunded liabilities among the Borrower, the Parent, Affiliates, Subsidiaries and their respective Plans in such manner as is fair and equitable to the Borrower and its Subsidiaries, (3) any amendments, modifications or waivers of the Cross-Indemnification Agreement or the Tax Sharing Agreement which do not, in the aggregate, materially reduce the rights of the Borrower thereunder against the Parent or materially increase the obligations of the Borrower thereunder to the Parent and (4) any other amendments, modifications or waivers of such instruments to which the Required Banks have consented. True and complete copies of all such amendments, modifications and waivers have been delivered to the Agent for each of the Banks. No amount that may be due under the Cross-Indemnification Agreement or the Tax Sharing Agreement from the Parent to the Borrower or to the Parent from the Borrower is delinquent, except such amount as the Borrower or the Parent may be contesting in good faith.
(j) Each corporate Subsidiary is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, and has all corporate powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted except for licenses, authorizations, consents or approvals the absence of which will not materially and adversely affect the business of the Borrower and its Consolidated Subsidiaries taken as a whole.
(k) The Borrower is not an “"investment company” or a company “controlled” by an “investment company” " within the meaning of the Investment Company Act of 1940, as amended.
(jl) Except as could not reasonably be expected to result in a Material Adverse EffectThere are no Liens on any asset of the Borrower or any Subsidiary on July 23, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of 1997 which would have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status prohibited if Section 5.02 of such ERISA Plan, and since this Agreement had been in effect on the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurredor such Subsidiary, and does not reasonably expect to incuras the case may be, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedacquired such asset.
(m) The reportsExcept as disclosed in writing to the Banks, financial statements the description of environmental matters affecting the Borrower and other written information furnished by or on behalf its Subsidiaries contained in each of the Borrower Borrower's reports delivered to the Administrative Agent, any LC Issuing Bank or any Lender Banks pursuant to or clause (ii) of Section 5.01(c) complied in connection all material respects as of the date of such report with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as requirements of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries rules and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctionsregulations promulgated thereunder.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Arco Chemical Co), Credit Agreement (Arco Chemical Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is Each Loan Party and their Material Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it own or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualificationbe licensed, except where the failure to be so qualify qualified would not materially adversely affect 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 business, condition (financial or otherwise), operations or propertiesproperties and to carry on its business as now conducted as and proposed to be conducted.
(b) The execution, delivery and performance by the Borrower of each this Amendment and the Loan Document Documents, as amended hereby, to which it is, is or is to become, be a party, party are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational corporate action and do not and do not contravene (i) the Borrowersuch Loan Party’s organizational documents, charter or by-laws or (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower any Loan Party, any of its Subsidiaries or any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and or performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) Amendment or any other of the Loan Document Documents, as amended hereby, to which it is, is or is to become, be a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have Amendment has been or will be (as the case may be) duly executed and delivered by it, the Borrower. This Amendment and this Agreement is, and upon execution and delivery thereof each of the other Loan Document will beDocuments, as amended hereby, to which the Borrower is a party are legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with its their respective terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting the rights of creditors generally the enforcement of creditors’ rights and remedies and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equity.
(e) The consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of at December 3125, 20232004, and for the year ended on such date, as set forth in related Consolidated statements of income and cash flows of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SECthen ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, and the consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of March 31at June 25, 20242005, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended on such datesix months then ended, as set forth in duly certified by the chief financial officer of the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each BankLender, fairly present present, subject, in the consolidated case of said balance sheet as at June 25, 2005, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAPgenerally accepted accounting principles consistently applied. Since December 25, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232004, there has been no material adverse change in the financial condition or operations of the BorrowerMaterial Adverse Change.
(f) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, suit, investigation, litigation or proceeding proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably be expected likely to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
Effect (g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for other than the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (cDisclosed Litigation) or (dii) will consist purports to affect the legality, validity or enforceability of this Amendment or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning any of the Investment Company Act of 1940other Loan Documents, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Planamended hereby, and since the date of such Schedule B there has been no adverse change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employeesstatus, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from financial effect on the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements Subsidiaries, of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes Disclosed Litigation from that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (bdescribed on Schedule 3.01(b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectCredit Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) 1. The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) 2. The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) 3. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) 4. This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Entergy Arkansas, LLC), Credit Agreement (Entergy Arkansas, LLC)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a corporation duly organized, validly existing and in good standing under the laws of the State of Iowa and is duly qualified to do business and is in good standing as a foreign corporation under the laws of each state in which the ownership of its properties or the conduct of its business makes such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect, and each Material Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted it is incorporated or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesotherwise organized.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it isDocument, or is to become, a partyand the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s organizational powers, corporate powers and have been duly authorized by all necessary organizational action corporate action. Each Loan Document has been duly executed and do not contravene (i) delivered by the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any Loan Document, other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has than such Governmental Approvals that have been duly obtained, obtained and is are in full force and effect, which as of the date hereof include: Letter Order issued March 29, 2022, in Docket No. ES22-26-000, by the FERC.
(d) This Agreement The execution, delivery and performance by Borrower of the other Loan Documents will not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with, or result in a breach of or constitute a default under, any contract, agreement, indenture or instrument to which it is, the Borrower or any of its Material Subsidiaries is to become, a party or by which any of its or their respective properties is bound or (iii) result in the creation or imposition of any Lien on the property of Borrower or any of its Material Subsidiaries other than Permitted Liens and Liens required under this Agreement, except to the extent such conflict, breach or default referred to in the preceding clause (ii), individually or in the aggregate, would not reasonably be expected to have been or will be a Material Adverse Effect.
(as the case may bee) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Each Loan Document will be, is the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or except as limited by bankruptcy and similar laws affecting generally the enforcement of creditors’ rights generally and remedies and to by the application of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrowerequitable principles.
(f) Except as disclosed The Borrower and each Material Subsidiary are in compliance with all Applicable Laws (including Environmental Laws), except to the Disclosure Documents, there extent that failure to comply would not reasonably be expected to have a Material Adverse Effect.
(g) There is no action, suit, proceeding, claim or dispute pending or, to the Borrower’s knowledge, threatened against or threatened action or proceeding affecting the Borrower or any of its Subsidiaries Material Subsidiaries, or any of its or their respective properties or assets, before any courtGovernmental Authority that, governmental agency individually or arbitrator that in the aggregate, could reasonably be expected to have a Material Adverse Effect. There has been is no change injunction, writ, preliminary restraining order or any other order of any nature issued by any Governmental Authority directing that any material aspect of the transactions expressly provided for in any matter of the Loan Documents not be consummated as herein or therein provided.
(h) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at December 31, 2021, and the related consolidated statements of income, cash flows and stockholders’ equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP, copies of which have heretofore been furnished to the Administrative Agent and each Lender, present fairly in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such date, and the consolidated results of their operations and cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as may be disclosed in such filings therein).
(i) Since December 31, 2021, no event has occurred that could reasonably be expected to result in such have a Material Adverse Effect.
(gj) No event has occurred The Borrower and each Material Subsidiary have filed or caused to be filed all U.S. Federal and other material tax returns that are required by Applicable Law to be filed, and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property; other than (i) with respect to taxes the amount or validity of which is continuing currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or the applicable Material Subsidiary, as the case may be, or (ii) to the extent that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice failure to do so could not reasonably be given or time elapse or bothexpected to result in a Material Adverse Effect.
(hk) No ERISA Event has occurred other than as would not, either individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. There are no actions, suits or claims pending against or involving a Pension Plan (other than routine claims for benefits) or, to the knowledge of the Borrower or any of its ERISA Affiliates, threatened, that would reasonably be expected to be asserted successfully against any Pension Plan and, if so asserted successfully, would reasonably be expected either singly or in the aggregate to have a Material Adverse Effect. No lien imposed under the Internal Revenue Code or ERISA on the assets of the Borrower or any of its ERISA Affiliates exists or is likely to arise with respect to any Pension Plan. The Borrower and each of its Subsidiaries have complied with foreign law applicable to its Foreign Plans, except to the extent that failure to comply would not reasonably be expected to have a Material Adverse Effect.
(l) The Borrower is not engaged in the business of extending credit for the purpose of purchasing buying or carrying Margin Stock, and no proceeds of any Extension of Credit Loan will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing buying or carrying any Margin Stock. After applying Following the application of the proceeds of each any Extension of Credit, not more than 25% of the value of the assets of the Borrower and its the Material Subsidiaries that are subject to the restrictions of Section 5.02(a), ) or (c) or (d) will consist of or be represented by Xxxxxx Xxxxxconstitute Margin Stock.
(im) The Neither the Borrower nor any Subsidiary is not an “investment company” or a company “controlled” by an “investment company,” within the meaning of as such terms are defined in the Investment Company Act of 1940, as amended.
(jn) Except as could not There are no claims, liabilities, investigations, litigation, notices of violation or liability, administrative proceedings, judgments or orders, whether asserted, pending or threatened, relating to any liability under or compliance with any applicable Environmental Law, against the Borrower or any Material Subsidiary or relating to any real property currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary, that would reasonably be expected to result in have a Material Adverse Effect. No Hazardous Materials have been or are present or are being spilled, no ERISA Termination Event has occurreddischarged or released on, in, under or from property (real, personal or mixed) currently or formerly owned, leased or operated by the Borrower or any Material Subsidiary in any quantity or manner violating, or is reasonably expected to occurresulting in liability under, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Planapplicable Environmental Law, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could violation or liability would reasonably be expected to result in have a Material Adverse Effect.
(lo) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability No written statement or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any Lender or any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated therebysyndication or negotiation of this Agreement or delivered pursuant hereto, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed each case as of any the date of determination with the SEC under the Securities Exchange Act of 1934such statement or information is made or delivered, as amendedapplicable, do not contain and will not contain, when taken as a wholecontained or contains, any untrue statement material misstatement of a material fact and do not omit and will not omit, when taken as a whole, or intentionally omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were were, are, or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedmisleading.
(np) As Each Material Subsidiary as of the date delivered, the information included in the Beneficial Ownership Certification, if any, hereof is true and correct in all respectsset forth on Schedule III.
(oq) The Borrower has implemented and maintains in effect policies and procedures designed to ensure promote compliance by the Borrower, its Subsidiaries and their respective directors, officers, officers and employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its their respective officers, directors and agentsemployees and their respective agents that will act in any capacity in connection with or benefit from the credit facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or Credit, use of proceeds thereof or other transaction contemplated by this Agreement will violate any Anti-Corruption Laws Law or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Midamerican Energy Co), Credit Agreement (Midamerican Energy Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants warrants, on the Effective Date (other than with respect to Section 4.01(o)) and the Funding Date, as follows:
(a) The Borrower is Each of the Borrower, the Guarantor Subsidiaries and each Material Subsidiary (i) is a Person duly continued organized, formed or incorporated, validly existing and in good standing under the laws of the jurisdiction of its continuance, organization, formation or incorporation, (ii) is duly qualified to carry on business in all jurisdictions in which it carries on any business, except to the extent the failure to be so qualified would not have a Material Adverse Effect, and (iiiii) duly qualified has full power and authority to do own its properties and conduct its business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiespresently conducted.
(b) The execution, delivery and performance by the Borrower each Loan Party of each Loan Document to which it is, or is to become, a party, and the consummation of the transactions contemplated thereby, are within the Borrowersuch Loan Party’s corporate or other organizational powers, have been duly authorized by all necessary corporate or other organizational action of such Loan Party and do not contravene (i) the Borrowersuch Loan Party’s articles, charter, by-laws or similar organizational documents, documents or (ii) any law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its propertiessuch Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower each Loan Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other each Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Each Loan Documents to which it is, or is to become, a party have Document has been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Party that is a party thereto. Each Loan Document will be, is the legal, valid and binding obligation of the Borrower each Loan Party thereto, enforceable against the Borrower such Loan Party in accordance with its terms, subject, however, except to the extent that such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or other similar laws affecting generally the enforcement of creditors’ rights generally from time to time in effect and may be subject to the discretion of courts with respect to the granting of equitable remedies and to general principles the power of equity (regardless courts to stay proceedings for the execution of whether enforceability is considered in a proceeding in equity or at law)judgments.
(e) The consolidated financial statements Each of (i) the Consolidated balance sheet of the Borrower and its Subsidiaries as of at December 31, 2023, and for the year ended on such daterelated Consolidated statements of earnings, as set forth changes in shareholders’ equity and cash flows of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SECthen ended, accompanied by an opinion of Deloitte & Touche LLPthe Borrower’s auditors thereon, and (ii) the consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of March 31at September 30, 2024, and the related Consolidated statements of earnings, changes in shareholders’ equity and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended on such date, as set forth in and the Borrower’s Quarterly Report on Form 10-Q for portion of the fiscal quarter ended on such date, as filed with the SECyear then ended, copies of each of which have been furnished made available to each Bankthe Lenders prior to the Effective Date, fairly present the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated Consolidated results of the operations and cash flows of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, GAAP consistently applied (in the case of such financial statements for the fiscal quarter ended March 31clause (ii) above, 2024, subject to year-end adjustments and the absence of detailed footnotes). Except as disclosed in the Disclosure Documents, since Since December 31, 2023, there has been no material adverse change in the financial condition or operations of the BorrowerMaterial Adverse Change.
(f) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, suit, litigation or proceeding affecting the Borrower or any of its Subsidiaries Subsidiaries, including any Environmental Action, pending or, to the best of the Borrower’s knowledge after reasonable investigation, overtly threatened, before any court, governmental agency or arbitrator that (i) is reasonably likely to be determined adversely, and if determined adversely, would have a Material Adverse Effect or (ii) purports to affect adversely the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby.
(g) The Borrower and each of its Subsidiaries, and their respective operations and properties, comply in all material respects with all applicable laws, rules, regulations and orders, except where the failure to comply could not reasonably be expected to have a Material Adverse Effect. There has been no change have, individually or in any matter disclosed in such filings that could reasonably be expected to result in such the aggregate, a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Neither the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of nor any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Guarantor Subsidiaries subject to the restrictions of Section 5.02(a)is an Investment Company, (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower as such term is not an “investment company” or a company “controlled” by an “investment company” within the meaning of defined in the Investment Company Act of 1940, as amended.
(i) The Borrower and each of its Subsidiaries have filed, have caused to be filed or have been included in all tax returns (federal, state, local and foreign) required to be filed or, in the case of income taxes, required to be filed and where the failure to do so would cause the imposition of a penalty or interest, and in each case have paid all taxes shown thereon to be due, together with applicable interest and penalties other than taxes that are being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, except where the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(j) Except as could not reasonably be expected to result have, individually or in the aggregate, a Material Adverse Effect, :
(i) no ERISA Termination Event has occurred, occurred or is reasonably expected to occur, occur with respect to any ERISA Plan.;
(kii) Schedule B SB (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to for each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the BanksService, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B SB there has been no material adverse change in such funding status that could reasonably be expected to result in a Material Adverse Effect.status;
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (iiiii) neither the Borrower nor any of its ERISA Affiliates Affiliate has incurred or is reasonably expected to incur any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.Withdrawal Liability to any Multiemployer Plan;
(miv) The reports, financial statements and other written information furnished by or on behalf of neither the Borrower to nor any ERISA Affiliate has been notified by the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement sponsor of a material fact Multiemployer Plan that such Multiemployer Plan has been terminated, within the meaning of Title IV of ERISA, and do not omit and will not omitno such Multiemployer Plan is reasonably expected to be terminated, when taken as a whole, to state any fact necessary to make within the statements therein, in the light meaning of the circumstances under which they were or will be made, not misleading in any material respectTitle IV of ERISA; provided that, and
(v) with respect to projections each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed with respect to be reasonable at the time made and notes that whether each employee benefit plan maintained or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed contributed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower that is not subject to United States law (a “Foreign Plan”):
(A) Any employer and employee contributions required by law or such ERISA Affiliateby the terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, as or, if applicable, accrued, in accordance with normal accounting practices.
(B) The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable GAAP.
(qC) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports Each Foreign Plan required to be filed, registered has been registered and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested has been maintained in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance standing with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectapplicable regulatory authorities.
Appears in 2 contracts
Samples: Asset Sale Term Credit Agreement (Ovintiv Inc.), Credit Agreement (Ovintiv Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery delivery, and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within this Agreement and the New Note and the consummation of the transactions contemplated thereby (i) do not contravene the organizational documents of the Borrower’s organizational powers, (ii) have been duly authorized by all necessary organizational corporate action of the Borrower, and do not contravene (iii) are within the Borrower's corporate powers.
(b) This Agreement has been duly executed and delivered by the Borrower and constitutes the legal, valid, and binding obligation of the Borrower, enforceable against the Borrower in accordance with the Agreement's terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws at the time in effect affecting the rights of creditors generally and general principles of equity.
(c) The execution, delivery, and performance, in accordance with their respective terms, by the Borrower of this Agreement and the New Note and the consummation of the transactions contemplated thereby, (i) do not result in any violation or breach of any provisions of, or constitute a default under, any note, indenture, credit agreement, security agreement, credit support agreement, or other similar agreement to which the Borrower’s organizational documentsBorrower is a party or any other Material contract or agreement to which the Borrower is a party, (ii) do not violate any law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction regulation binding on or affecting the Borrower or its properties.
Borrower, (ciii) No authorization or approval do not require any authorization, approval, or other action by, and no or any notice to or filing with, any governmental authority authority, and (iv) do not result in or regulatory body require the creation or imposition of any Lien prohibited by this Agreement.
(d) After giving effect to this Agreement and any other New Lender Agreements and Accordion Agreements, the Borrower will be in compliance with the limitations set forth in Section 2.08 of the Credit Agreement.
(e) If there is required for an increase to the due executionRevolving Commitments and on the effective date of such increase any Revolving Loans are outstanding, delivery arrangements satisfactory to the Agent have been made to prepay all outstanding Revolving Loans, together with accrued interest thereon and performance any amounts payable pursuant to Section 3.04 of the Credit Agreement.
(f) The resolutions duly adopted by the respective governing bodies of the Borrower of this Agreement (including obtaining any Extensions of Credit under and the Subsidiary Guarantors are sufficient to authorize this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtainedNew Note, and is the Guaranty thereof and security therefor, as applicable, and such resolutions remain in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Accordion Agreement (Lyondell Chemical Co), Accordion Agreement (Lyondell Chemical Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is and each of its Significant Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the its jurisdiction of its organization, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it owns or leases property or in which the nature conduct of the its business conducted or the property owned, operated or leased by requires it requires such qualification, except where failure to so qualify would not materially adversely affect or be licensed and where, in each case, failure so to qualify and be in good standing could have a Material Adverse Effect and (iii) has all requisite corporate power and authority to own or lease and operate its business, condition (financial properties and to carry on its business as now conducted and as proposed to be conducted. None of the Borrower or otherwise), operations any of its Subsidiaries is an Affected Financial Institution or propertiesCovered Party.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, this Agreement are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) contravene the Borrower’s charter, by-laws or other organizational documents, (ii) law applicable to contravene any contractual restriction binding on the Borrower or its properties, or (iii) violate any law, rule or regulation (including the Securities Act of 1933, 16605535v6 24740.00262 52 the Exchange Act and Regulations U and X), or order, writ, judgment, injunction, decree, determination or award. The Borrower is not in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any contractual or legal restriction binding on upon it, except for such violation or affecting the Borrower or its propertiesbreach which would not have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority is required (other than those which have been obtained) for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ei) The consolidated financial Borrower has heretofore furnished to each of the Lenders its (A) audited Consolidated balance sheet and statements of the Borrower earnings, equity and its Subsidiaries cash flows as of December 31, 2023, at and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such dateDecember 31, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP2022, and the consolidated financial (B) unaudited Consolidated balance sheet and statements of the Borrower earnings, equity and its Subsidiaries cash flows as of March 31, 2024, at and for the fiscal quarter ended on September 30, 2023, and such datefinancial statements fairly present, as set forth in all material respects, the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated Consolidated financial condition and results of operations of the Borrower and its Subsidiaries as at the date thereof and for such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such datesfiscal period, all in accordance with GAAP, subject, GAAP as in effect on such respective date; (ii) the case Borrower has heretofore furnished to each of such financial statements the Lenders the Annual Statement of each Material Insurance Subsidiary for the fiscal quarter year ended March December 31, 20242022, to year-end adjustments as filed, in each case, with the applicable Insurance Regulatory Authority, and such Annual Statements present fairly, in all material respects, the financial condition of each such Insurance Subsidiary, respectively, as at the date thereof and the absence results of detailed footnotes. Except as disclosed such Insurance Subsidiary’s operations for the fiscal year ended December 31, 2022, in the Disclosure Documents, each case in accordance with SAP; and (iii) since December 31, 20232022, except as previously disclosed in filings with the Securities and Exchange Commission by the Borrower prior to the date hereof (but excluding any risk factors, forward-looking disclosure and any other disclosures that are cautionary, predictive or forward-looking in nature) there has been no material adverse change or event or circumstance that would reasonably be expected to result in a material adverse change in the business, condition (financial condition or otherwise) or results of operations of the BorrowerBorrower and its Subsidiaries, taken as a whole.
(f) Except Other than as disclosed in filings of the Disclosure DocumentsBorrower with the Securities and Exchange Commission, there is no action pending or threatened action in writing or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could which (i) is reasonably be expected likely to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected Effect or (ii) purports to result in such a Material Adverse Effectaffect this Agreement or the transactions contemplated hereby.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose purpose, whether immediate, incidental or ultimate, of purchasing buying or carrying any Margin Stock. After The Borrower is, and after applying the proceeds of each Extension Advance, will be in compliance with its obligations under Section 5.01(b). If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and 16605535v6 24740.00262 53 each Lender a statement in conformity with the requirements of CreditFederal Reserve Form U-1 referred to in Regulation U, not more than 25% the statements made in which shall be such, in the opinion of each Lender, as to permit the transactions contemplated hereby in accordance with Regulation U. No portion of any Advance under this Agreement shall be used by the Borrower in violation of Regulation T, U or X or any other Regulation of the value FRB, as in effect on the date of such Advance and the use of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxproceeds thereof.
(ih) The Borrower is not an “investment company” ”, or a company Person “controlledcontrolled by” by an “investment company” within the meaning of ”, as such terms are defined in the Investment Company Act of 1940.
(i) All information that has been made available by the Borrower or any of its representatives to the Administrative Agent or any Lender in connection with the negotiation of this Agreement was, on or as amendedof the dates on which such information was made available, complete and correct in all material respects and did not contain any untrue statement of a material fact or omit to state a fact necessary to make the statements contained therein not misleading in light of the time and circumstances under which such statements were made. All financial projections that have been prepared by the Borrower and made available to the Administrative Agent or any Lender in connection with the negotiation of this Agreement have been prepared in good faith based upon assumptions believed to be reasonable at the time of preparation and delivery (it being understood that such projected information may vary from actual results and that such variances may be material). There is no fact known to the Borrower (other than matters of a general economic nature) that has had, or could reasonably be expected to have, a Material Adverse Effect and that has not been disclosed herein or in such other documents, certificates and statements furnished to the Lenders for use in connection with the transactions contemplated by this Agreement. As of the Effective Date, all of the information included in the Beneficial Ownership Certification delivered pursuant to Section 3.01(j) (if any) is true and correct.
(j) Except Neither the Borrower nor any other member of the Controlled Group maintains, or is obligated to contribute to, any Multiemployer Plan or has incurred, or is reasonably expected to incur, any withdrawal liability to any Multiemployer Plan. Each Plan complies in all material respects with all applicable requirements of law and regulations, except where noncompliance would not have a Material Adverse Effect. Neither the Borrower nor any member of the Controlled Group has, with respect to any Single Employer Plan, failed to make any material contribution or pay any material amount required under Section 412 of the Code or Section 302 of ERISA or the terms of such Single Employer Plan. The Borrower has not engaged in any prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) in connection with any Plan which may reasonably be expected to have a Material Adverse Effect. Within the last five years neither the Borrower nor any member of the Controlled Group has engaged in a transaction which resulted in a Single Employer Plan with an Unfunded Liability being transferred out of the Controlled Group. No Termination Event has occurred or is reasonably expected to occur with respect to any Single Employer Plan. As of the Effective Date the Borrower is not nor will be using “plan assets” (within the meaning of Section 3(42) of ERISA) of one or more Benefit Plans with respect to Borrower’s entrance into, participation in, administration of and performance of this Agreement. 16605535v6 24740.00262 54
(k) The Borrower and each of its Subsidiaries is in compliance with all laws, statutes, rules, regulations and orders binding on or applicable to the Borrower (including all Environmental Laws), its Subsidiaries and all of their respective properties, except to the extent failure to so comply could not (either individually or in the aggregate) reasonably be expected to have a Material Adverse Effect. There have been filed on behalf of the Borrower and its Subsidiaries all federal, state, local and foreign income, excise, property and other tax returns which are required to be filed by them and all taxes shown due and owing by such returns have been paid except (i) where the failure to make such filings or payments would not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, Effect or is reasonably expected to occur, (ii) those payments which are being contested in good faith by appropriate proceedings and with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which adequate reserves have been filed with set aside. The charges, accruals and reserves on the Internal Revenue Service books of the Borrower and furnished to its Subsidiaries in respect of taxes or other governmental charges are, in the Banksopinion of the Borrower, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effectadequate.
(l) Except as could not reasonably be expected There is no indenture, agreement or other contractual arrangement to result in a Material Adverse Effect, (i) which the Borrower or any Significant Subsidiary is a party that, directly or indirectly, prohibits or restrains, or has not incurredthe effect of prohibiting or restraining, or imposing any condition upon, the declaration or payment of dividends or other distributions on any class of stock of any Subsidiary of the Borrower, other than such prohibitions, restraints and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither conditions which are disclosed in filings of the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under with the WARN Act, which remains unpaid or unsatisfiedSecurities and Exchange Commission.
(m) The reportsNeither the Borrower, financial statements and other written information furnished by or on behalf nor any of the Borrower its Subsidiaries, nor, to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control knowledge of the Borrower and actual results may vary from the projections and such variations may be material andits Subsidiaries, accordinglyany director, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date deliveredofficer, the information included in the Beneficial Ownership Certificationemployee, if anyagent, affiliate or representative thereof, is true and correct an individual or entity that is, or is owned or controlled by any individual or entity that (i) is a Sanctioned Person, (ii) to the Borrower’s knowledge is under administrative, civil or criminal investigation for an alleged violation of, or received notice of a violation of, Anti-Corruption Laws, Anti-Terrorism Laws or Sanctions by a governmental authority that enforces Sanctions or any Anti-Corruption Laws or Anti-Terrorism Laws, or (iii) is located, organized or resident in all respects.
(o) a Designated Jurisdiction. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors their respective directors, officers, employees, agents, affiliates and agentsrepresentatives, are in compliance with Anti-Corruption Laws and all applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(qn) The Borrower and its Subsidiaries have filed conducted, in all federalmaterial respects, state their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other Tax returns anti-corruption legislation in other jurisdictions applicable to the Borrower and reports required to be filedits Subsidiaries (“Anti-Corruption Laws”), Anti-Terrorism Laws and applicable Sanctions and have paid all federal, state instituted and other Taxes, assessments, fees maintained policies and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance procedures reasonably designed to promote compliance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectsuch laws.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Cna Financial Corp), Revolving Credit Agreement (Cna Financial Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower Each Loan Party is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction laws of its justification of organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document Party of the Loan Documents to which it is, or is to become, a party, and the consummation of the transactions contemplated hereby and thereby, are within the Borrowersuch Loan Party’s corporate or other organizational powers, have been duly authorized by all necessary organizational action corporate or other action, and do not contravene (i) the Borrowersuch Loan Party’s charter or by-laws or other organizational documents, (ii) law applicable to the Borrower or its propertieslaw, or (iii) any contractual indenture, deed of trust, credit agreement or legal restriction loan agreement binding on or affecting the Borrower or its properties(iv) any other material agreement, contract or instrument binding on or affecting such Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by any Loan Party of the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document Documents to which it is, is or is to becomebe a party. No authorization or approval or other action by, and no notice to or filing with, any third party is required for the due execution, delivery and performance by any Loan Party of the Loan Documents to which it is or is to be a party, except for to the FERC Authorization, which has been duly obtained, and is in full force and effectextent that failure to so obtain or so file could not reasonably be expected to have a Material Adverse Effect.
(d) This Agreement has been, and the each other Loan Documents to which it isDocument when delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Loan Party party thereto. This Agreement is, and upon execution and delivery thereof each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower each Loan Party party thereto enforceable against the Borrower such Loan Party in accordance with its their respective terms, subject, however, subject to the effect of any applicable bankruptcy, reorganizationinsolvency, rearrangement, reorganization or moratorium or similar laws affecting the rights of creditors generally the enforcement of creditors’ rights and remedies and subject to general principles of equity (regardless of whether enforceability enforcement is considered sought in a proceeding at law or in equity or at lawequity).
(e) The consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of at December 31, 20232007, and for the year ended on such date, as set forth in related Consolidated statements of income and cash flows of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SECthen ended, accompanied by an opinion of Deloitte Ernst & Touche Young LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECindependent public accountants, copies of each of which have been furnished to each BankLender, fairly present in accordance with GAAP the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates date and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotesgenerally accepted accounting principles consistently applied. Except as disclosed in the Disclosure Documents, since Since December 31, 20232007, there no event or circumstance has been no material adverse change occurred and is continuing that could reasonably be expected to result in the financial condition or operations of the Borrowera Material Adverse Change.
(f) Except as disclosed in the Disclosure Documents, there There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or threatened action or proceeding proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably be expected likely to have a Material Adverse Effect. There has been no change in Effect or (ii) could be reasonably likely to adversely affect the legality, validity or enforceability of this Agreement or any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effectother Loan Documents or the consummation of the transactions contemplated hereby or thereby.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Extension of Credit Advance will be used to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxmargin stock.
(ih) The Borrower is not an “investment company” ”, or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurredEach Loan Party is, individually and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934its Subsidiaries, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedSolvent.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Packaging Corp of America), Credit Agreement (Packaging Corp of America)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:follows as of the date hereof and as of the date of each Borrowing and each Release hereunder and as of each Reporting Date (except that the representations and warranties set forth in paragraphs (e), (f) and (q)(i) below shall be made solely on the date of each Borrowing and each Reporting Date):
(a) The Borrower is (i) a limited liability company duly organizedformed, validly existing and in good standing under the laws of the jurisdiction of its organizationDelaware, and (ii) is duly qualified to do business as a foreign organization business, and is in each good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified, unless the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesreasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it isthe Transaction Documents, or is to becomeincluding the Borrower's use of the proceeds of Loans, a party, (i) are within the Borrower’s organizational 's limited liability company powers, (ii) have been duly authorized by all necessary organizational action and limited liability company action, (iii) do not contravene (iA) the Borrower’s organizational documents's certificate of formation or limited liability company agreement, (iiB) law any law, rule or regulation applicable to the Borrower or its propertiesBorrower, or (iiiC) any contractual or legal restriction binding on or affecting the Borrower or its propertiesproperty or (D) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower or its property, where any such contravention described in this clause (iii) could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and (iv) do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties (except as created pursuant to the Transaction Documents). Each of the Transaction Documents has been duly executed and delivered by the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Official Body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) the Transaction Documents to which it is a party or any other Loan Document document to which it is, or is to become, a partybe delivered thereunder, except for the FERC Authorization, which has been duly obtained, and is in full force and effectfiling of UCC financing statements referred to on Schedule IV.
(d) This Agreement and Each of the other Loan Transaction Documents to which it is, or the Borrower is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, subject to any applicable the effects of (i) bankruptcy, reorganizationinsolvency, rearrangementmoratorium, moratorium reorganization or other similar laws affecting generally the enforcement of creditors’ ' rights and remedies and to generally, (ii) general principles of equity (equity, regardless of whether such enforceability is considered in a proceeding in equity or at law)law and (iii) implied covenants of good faith and fair dealing.
(e) The consolidated financial statements opening pro forma balance sheet of the Borrower and its Subsidiaries as of December 31the Closing Date, 2023giving effect to the initial Borrowing to be made under this Agreement, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each a copy of which have has been furnished to the Administrative Agent and each BankFunding Agent, fairly present presents on a pro forma basis the consolidated estimated financial condition of the Borrower as of such date. Since the Closing Date there has been no event or circumstance which has had or that is reasonably likely to have a Material Adverse Effect.
(f) Except as set forth in Schedule VIII, as of the initial Borrowing Date, there are no actions, suits or proceedings at law or in equity or by or before any Official Body or in arbitration now pending or, to the actual knowledge of a Responsible Officer of the Borrower, threatened in writing against or affecting the Borrower or any of its business, property or rights. As of each other Borrowing Date and Reporting Date, there are no actions, suits or proceedings at law or in equity or by or before any Official Body or in arbitration, to the actual knowledge of a Responsible Officer of the Borrower, threatened in writing against or affecting the Borrower or any of its business, property or rights which in either case, (i) involve the Transaction Documents or the Transactions (as defined in the Senior Credit Agreement as in effect on the date hereof) or (ii) as to which an adverse determination is reasonably probable and which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or materially and adversely effect the Transactions. The Borrower is not in default of any order of any Official Body where such default could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(g) No proceeds of any Borrowing will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, "margin stock" within the meaning of Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.
(h) Each Receivable treated as or represented to be a Pool Receivable is owned by the Borrower or the European Purchaser, as the case may be, free and clear of any Adverse Claim (other than Permitted Adverse Claims). The Administrative Agent, for the benefit of the Secured Parties, has a valid and perfected first priority security interest in each Pool Receivable now existing or hereafter arising and in the Related Security and Collections with respect thereto and all other Collateral, in each case free and clear of any Adverse Claim (other than Permitted Adverse Claims). No effective financing statement or other instrument similar in effect is filed in any recording office listing the Borrower, the European Purchaser, the Transferor or any Originator as debtor, covering any Pool Receivable, Related Security or other Collateral except such as (i) may be filed in favor of the Administrative Agent in accordance with this Agreement and (ii) as may be filed in favor of the Borrower, the European Purchaser or the Transferor and assigned to the Administrative Agent in accordance with this Agreement, the Transfer Agreement, the European Purchaser Security Agreement and the European Loan Agreement.
(i) Each Portfolio Report (if prepared by any Transaction Party or one of their respective Affiliates, or to the extent that information contained therein is supplied by any Transaction Party or an Affiliate), information, exhibit, document, book, record or report furnished in writing at any time by or on behalf of any Transaction Party to the Administrative Agent, any Funding Agent or any Lender in connection with this Agreement is accurate in all material respects as of its date or (except as otherwise disclosed to the Administrative Agent, such Funding Agent or such Lender, as the case may be, at such time) as of the date so furnished. The Information Memorandum is accurate in all material respects as of its date and does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. All financial statements and other financial data which have been or shall hereafter be furnished by any Transaction Party fairly present, and will fairly present, in all material respects, the financial condition of the applicable Transaction Party and its Subsidiaries consolidated subsidiaries as at such of the dates set forth therein and the consolidated results of the operations of the Borrower such Transaction Party and its Subsidiaries consolidated subsidiaries for the periods ended on such dates.
(j) The Borrower is located in the State of Delaware for the purposes of Section 9-307 of the UCC as in effect in the State of New York.
(k) The names and addresses of all the Collection Account Banks and the Concentration Account Banks together with the account numbers of the Collection Accounts and the Concentration Accounts at such Collection Account Banks and Concentration Account Banks are as specified in Schedule V hereto, as such Schedule V may be updated from time to time pursuant to Section 5.01(g).
(l) Since its formation, the Borrower has not used any company name, tradename or doing-business-as name other than the name in which it has executed this Agreement. The Borrower's Federal Employer Identification Number is 00-0000000.
(m) The Borrower was formed on February 20, 2003 and the Borrower did not engage in any business activities prior to the date of this Agreement. The Borrower has no Subsidiaries. The Transferor directly owns 100% of the membership interests of the Borrower, free and clear of any Adverse Claims.
(n) The Borrower is not an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
(i) The fair value of the assets of the Borrower, at a fair valuation, exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Borrower; (ii) the present fair saleable value of the property of the Borrower is greater than the amount that will be required to pay the probable liabilities of the Borrower on its debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Borrower will be able to pay its debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Borrower will not have unreasonably small capital with which to conduct the businesses in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing Date. The Borrower does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay such debts and liabilities as they mature, taking into account the timing and amounts of cash to be received by it and the timing and amounts of cash to be payable on or in respect of its Indebtedness.
(p) With respect to each Receivable treated as or represented to be a Pool Receivable, the Transferor or the European Purchaser, as applicable purchased such Receivable from the applicable Originator in exchange for payment (made by the Transferor or the European Purchaser, as applicable, to such Originator in accordance with GAAPthe provisions of the applicable Originator Purchase Agreement) of cash, subjectan addition to the principal amount of the applicable Intercompany Note, or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent value. With respect to each Receivable and loan acquired by the Borrower from the Transferor, such Receivable or loan has been acquired by the Borrower from the Transferor in accordance with the terms of the Transfer Agreement. Each such purchase referred to above shall not have been made for or on account of an antecedent debt owed by the applicable Originator to the Transferor or the European Purchaser, or by the Transferor to the Borrower, as the case of may be, and no such financial statements for the fiscal quarter ended March 31, 2024, sale is or may be voidable or subject to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations avoidance under any section of the BorrowerUnited States Bankruptcy Code or any other Law, whether foreign or domestic.
(fi) Except The Borrower and its ERISA Affiliates are in compliance with the applicable provisions of ERISA and the provisions of the IRC relating to Plans and the regulations and published interpretations thereunder and any similar applicable non-U.S. law, except for such noncompliance that could not reasonably be expected to have a Material Adverse Effect. No Reportable Event has occurred during the past five years as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting to which the Borrower or any ERISA Affiliate was required to file a report with the PBGC, other than reports that have been filed and reports the failure of its Subsidiaries before any courtwhich to file could not reasonably be expected to have a Material Adverse Effect. As of the Closing Date, governmental agency or arbitrator the present value of all benefit liabilities under each Plan of the Borrower and the ERISA Affiliates (based on those assumptions used to fund such Plan), as of the last annual valuation date applicable thereto for which a valuation is available, did not exceed the value of the assets of such Plan by an amount that could reasonably be expected to have a Material Adverse Effect, and the present value of all benefit liabilities of all underfunded Plans (based on those assumptions used to fund each such Plan), as of the last annual valuation dates applicable thereto for which valuations are available, did not exceed the value of the assets of all such underfunded Plans by an amount that could reasonably be expected to have a Material Adverse Effect. There None of the Borrower and the ERISA Affiliates has been no change in any matter disclosed in such filings that incurred or could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of incur any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status Withdrawal Liability that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. None of the Borrower and the ERISA Affiliates has received any written notification that any Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, where such reorganization or termination has had or could reasonably be expected to have, through increases 66
(ii) No Adverse Claim exists in favor of the Pension Benefit Guaranty Corporation on any of the Collateral.
(r) Each Receivable included in the calculation of the Net Receivables Balance on any date shall be an Eligible Receivable as of such date.
(s) No event has occurred and is continuing and no condition exists which constitutes a Termination Event.
Appears in 2 contracts
Samples: Receivables Loan Agreement (TRW Automotive Inc), Receivables Loan Agreement (TRW Automotive Inc)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as followsthat:
(a) The Borrower it is (i) a limited partnership duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationDelaware and has the partnership power and authority and the legal right to execute and deliver, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which perform its obligations under, this Trust Agreement and has taken all necessary partnership action to authorize the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance of this Trust Agreement;
(b) this Trust Agreement has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documentsenforceable in accordance with its terms, (ii) law applicable subject to the Borrower or its propertieseffects of bankruptcy, or (iii) any contractual or legal restriction binding on insolvency, reorganization, moratorium and other similar laws relating to or affecting the Borrower or its properties.enforcement of creditors' rights generally, general equitable principles and implied covenant of good faith and fair dealing;
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Trust Agreement (including obtaining will not violate, result in a default under, or give rise to any Extensions acceleration, prepayment, repurchase or redemption obligation of Credit under this Agreement) the Borrower or any other Loan Subsidiary which is a party to any Guarantee or Security Document to which it isas a result of (i) the partnership agreement of the Borrower or any such Subsidiary or (ii) any law, rule or regulation binding on the Borrower or any such Subsidiary or any contractual obligation of the Borrower and will not result in, or require, the creation or imposition of any Lien on any of its or their respective properties or revenues pursuant to any such law, rule or regulation or contractual obligation, other than the Liens created by the Security Documents; and
(d) no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or governmental authority and no consent of any other Person is to becomerequired of the Borrower in connection with the execution, a partydelivery, performance, validity or enforceability of this Trust Agreement, except for any of the FERC Authorization, which has foregoing that have been duly obtained, obtained and is are in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Trust Agreement (Sprint Spectrum Finance Corp), Trust Agreement (Sprint Spectrum Finance Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto the Lender that:
(a) The Borrower is (i) it has been duly organizedincorporated, validly existing exists and is in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) duly qualified to do business as a foreign organization in each jurisdiction where it carries on business and has been duly licensed to carry on business in which the nature of the business conducted or the property owned, operated or leased by all jurisdictions where it requires such qualification, except where failure to so qualify would not materially adversely affect its is carrying on business, condition (financial or otherwise), operations or properties.,
(b) The it has the power and authority to enter into, execute and deliver and to keep, observe and perform all of the covenants, agreements and other obligations made by or imposed on it under this Agreement and the Security Agreement (together the “Loan Documents”),
(c) the Loan Documents and all other instruments and agreements delivered by the borrower to the Lender pursuant to this Agreement have been or will be validly executed by it or on its behalf and, when delivered to the Lender, will be legal, valid and binding obligations of it, enforceable in accordance with their respective terms, except as enforcement may be limited by,
(i) applicable bankruptcy, insolvency, moratorium, reorganization and similar laws at the time in effect affecting the rights of creditors generally, and
(ii) equitable principles which may limit the availability of certain remedies, including the remedy of specific performance,
(d) the execution, delivery and performance by it of the Borrower Loan Documents does not contravene any material provision of each Loan Document any regulation, order or permit applicable to it, or cause a breach of or constitute a default under or require any consent under any agreement or instrument to which it is, is a party or by which it is to become, a party, are within the Borrower’s organizational powers, bound except such as have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).,
(e) The consolidated there are no suits or judicial proceedings or proceedings before any governmental commission, board or other agency, actual, pending or to its knowledge threatened against it which involves a significant risk of a judgment or liability which, if satisfied, would have an adverse effect upon its financial statements of position or the Borrower and ability to meet its Subsidiaries as of December 31, 2023, and for obligations under this Agreement or to grant the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Loan Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.,
(f) Except it is not in default under any guarantee, note or other instrument evidencing any indebtedness, other than as disclosed in writing to the Disclosure DocumentsLender by the Borrower, and to its knowledge there is exists no pending state of facts which, after notice or threatened action lapse of time or proceeding affecting the Borrower both or any of its Subsidiaries before any courtotherwise, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in would constitute such a Material Adverse Effect.default, and
(g) No no event has occurred and is continuing that constitutes outstanding which constitutes, or with notice or lapse of time or both would constitute, an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both(as defined below).
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Loan Agreement (Cheetah Oil & Gas Ltd.), Loan Agreement (Eden Energy Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(ai) The Borrower is and each of its Subsidiaries (i) is duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, and (ii) is duly licensed or qualified to do transact business as a foreign organization in each jurisdiction in which all jurisdictions where the character of the property owned or leased or the nature of the business conducted or the property owned, operated or leased transacted by it requires makes such qualification, except licensing or qualification necessary and where failure to be so qualify licensed or qualified would have a materially adverse impact on its business or properties; (ii) is in compliance with the requirements of applicable laws and regulations, except for such noncompliance as would not materially and adversely affect its business or financial condition; and (iii) has all requisite power and authority to conduct its business, condition (financial or otherwise)to own its properties and to execute and deliver, operations or propertiesand to perform all of its obligations under, the Loan Documents.
(bii) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within this Amendment and the Borrower’s organizational powers, transactions contemplated hereby have been duly authorized by all necessary organizational corporate action and do not contravene and will not (i) require any consent or approval of the stockholders of the Borrower’s organizational documents, or any authorization, consent or approval by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, except such as have already been obtained, (ii) law applicable violate any provision of any law, rule or regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System) or of any order, writ, injunction or decree presently in effect having applicability to the Borrower or any of its propertiesSubsidiaries or of the Articles of Incorporation or Articles of Association, as the case may be, or Bylaws of the Borrower or any of its Subsidiaries, (iii) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other material agreement, lease or instrument to which the Borrower or any of its Subsidiaries is a party or by which it or its properties may be bound or affected, or (iiiiv) result in, or require, the creation or imposition of any contractual Lien or legal restriction binding on other charge or affecting encumbrance of any nature upon or with respect to any of the properties now owned or hereafter acquired by the Borrower or any of its propertiesSubsidiaries. The Borrower is not in violation of any such indenture or loan or credit agreement or any other material agreement, lease or instrument the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(diii) This Agreement Amendment, the Credit Agreement, as amended hereby, and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will beconstitute, the legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with its their respective terms, subject, however, subject to any applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, rearrangement, moratorium or similar laws law affecting generally the enforcement of creditors’ rights generally, and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equity.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Samples: Credit Agreement (Greater Bay Bancorp), Credit Agreement (Greater Bay Bancorp)
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Lender (which representations and warrants will be deemed to be repeated by the Borrower on each day on which any Loan remains outstanding) as follows:
(a) The Borrower is (i) a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction State of its organization, and (ii) Florida is duly qualified to do business as a foreign organization corporation and is in good standing in each jurisdiction in as to which the location of its assets or the nature of the its business conducted makes qualification necessary or the property owneddesirable and has all power, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial corporate or otherwise), operations to conduct its business and to own, or propertieshold under lease, its assets, and to execute and deliver, and to perform all of its obligations under each of the Loan Documents.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, is or is to become, will be a party, party are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational action and corporate action, do not contravene (i) the Borrower’s organizational documents's charter or bylaws, (ii) law applicable to any law, rule, regulation (including, without limitation, Regulation G,U or X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award binding on or affecting Borrower or any of its properties, or (iii) the terms of any license, permit, certificate, authorization, qualification or other right or approval with respect to the business of Borrower, or (iv) any contractual or legal restriction binding on or affecting the Borrower or any of its properties, and Borrower is not in violation of or in default under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination, award or restriction or of the terms of any license, permit, certificate authorization, qualification or other approval.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or authority, regulatory body or other Person is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is or is to become, will be a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it isAgreement, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms. Each other Loan Document to which Borrower will be a party will, subjectupon execution and delivery thereof, howeverbe the legal, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement valid and binding obligation of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered enforceable against Borrower in a proceeding in equity or at law)accordance with its terms.
(e) The consolidated financial statements Balance Sheet of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP2004, and the consolidated financial statements related Consolidated Statements of Income and Stockholder's Equity and cash flows of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such dateperiod then ended, as set forth in certified by the chief financial officer of the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bankthe Lender, fairly present the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates date and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotesgenerally accepted accounting principles consistently applied. Except as disclosed in the Disclosure Documents, since Since December 31, 20232003, until and including the Closing Date, there has been no to material adverse change in the financial condition or operations or in the prospects, business, performance or properties of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there There is no action, suit, or administrative or other proceeding, investigation or review process pending or, to the knowledge of Borrower, threatened in any court or threatened action governmental department, commission, board, bureau, arbitrator, agency or proceeding affecting instrumentality, domestic or foreign, (i) which relates to any material aspect of the transactions contemplated by any Loan Document (ii) which relates to Borrower or any of its Subsidiaries before the property (whether real or personal) of Borrower and which may adversely affect the legality, validity or enforceability of any courtLoan Document, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the business, condition (financial or otherwise), operations, prospects, performance or properties of Borrower. There To the knowledge of the Borrower, no preliminary or permanent injunction, order or other restraint has been no change issued by any court or other governmental authority and is in any matter disclosed in such filings effect that could reasonably be expected to result in such a Material Adverse Effectprohibits the making of the Advance.
(g) No event Borrower has occurred filed all tax returns (federal, state and is continuing that constitutes an Event of Default local) required to be filed by it and has paid or that would constitute an Event of Default but caused to be paid all taxes due and payable for the requirement that notice be given or time elapse or bothperiods covered thereby, including interest and penalties.
(h) The Borrower is not engaged in All information and reports requested by the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service Lender and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished writing by or on behalf of Borrower or made available to the Lender relating to the condition (financial or otherwise), operations, business, properties, performance or prospects of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or otherwise in connection with the transactions contemplated by the Loan Documents are true and the transactions contemplated therebycorrect in all material respects, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as and no such information, exhibit or report contains any material misstatement of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of fact or omits to state a material fact and do not omit and will not omit, when taken as a whole, to state or any fact necessary to make the statements thereincontained therein not misleading.
(i) Neither the business nor the properties of Borrower or any of its Subsidiaries is affected by any fire, in the light explosion, accident, drought, storm, hail, earthquake, embargo, act of God or of the circumstances under which they were public enemy or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that other casualty (whether or not covered by insurance) materially and adversely affecting such projections business or forward looking statements are in fact achieved will depend upon future events some properties or the operations of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedBorrower.
(nj) As of To the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the best knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions the operations of the Borrower comply in all material respectsrespects with all applicable Environmental Laws and have not been used for the storage, treatment, disposal or handling of any Hazardous Substances except in material compliance with all applicable Environmental Laws. None of (a) To the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the best knowledge of the Borrower, there are no material liabilities under any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection applicable Environmental Law associated with or benefit arising from the credit facility established herebyReal Property or the operations of Borrower, is a Sanctioned Person. No Borrowing and there are no conditions on, in, under or Letter relating to the Real Property or the operations of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or Borrower that could give rise to any material liabilities imposed under any applicable SanctionsEnvironmental Laws.
(pk) All payments due from Neither the Borrower or making of any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on Loan under any facility, nor the financial statements application of the Borrower proceeds of such Loan will violate or such ERISA Affiliatebe inconsistent with the provisions of Regulations G, as applicableT, in accordance with GAAPU or X of the Board of Governors of the Federal Reserve System (the "Margin Regulations").
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Revolving Credit Agreement (Alternative Construction Company, Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a corporation duly organized, validly existing and existing, in good standing standing, and authorized to transact business under the laws of the jurisdiction State of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesincorporation.
(b) The execution, delivery and performance by the Borrower of each Loan Document the Credit Documents to which it is, or is to become, a party, party (i) are within the Borrower’s organizational corporate powers, (ii) have been duly authorized by all necessary organizational action and corporate action, (iii) do not contravene (iA) the Borrower’s organizational documentscharter or by-laws, (ii) law applicable to as the Borrower or its propertiescase may be, or (iiiB) any contractual law, rule or regulation, or any material Contractual Obligation or legal restriction restriction, binding on or affecting the Borrower or its propertiesany Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of the Borrower or any Material Subsidiary under any Contractual Obligation binding on or affecting the Borrower or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Credit Document to which it is, or any of them is to become, a party, except for the FERC Authorization, which has such as (i) have been duly obtained, obtained or made and is that are in full force and effecteffect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) This Agreement and the other Loan Documents Each Credit Document to which it is, or the Borrower is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting generally the enforcement of creditors’ rights generally and remedies and subject to general principles of equity (equity, regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Referenced Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECFinancial Statements, copies of each of which have been made available or furnished to each BankLender, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates the date thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since GAAP consistently applied.
(f) Since December 31, 20232018, there has been no material adverse change in the financial such condition or operations operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower.
(fg) Except as disclosed in for the Disclosure DocumentsSpecified Event, there is no pending or threatened action action, proceeding or proceeding investigation affecting the Borrower or any of its Subsidiaries before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by the Borrower or any of its Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Borrower and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There .
(j) Schedule SB (Actuarial Information) to the 2018 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule SB there has been no adverse change in any matter disclosed in such filings that could funding status which may reasonably be expected to result in such have a Material Adverse Effect.
(gk) No event Neither the Borrower nor any ERISA Affiliate has occurred and incurred or is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be given or time elapse or bothexpected to have a Material Adverse Effect.
(hl) The Neither the Borrower is not engaged in nor any ERISA Affiliate has been notified by the business sponsor of extending credit for a Multiemployer Plan that such Multiemployer Plan has been terminated, within the purpose meaning of purchasing or carrying Margin StockTitle IV of ERISA, and no proceeds Multiemployer Plan is reasonably expected to be terminated, within the meaning of any Extension Title IV of Credit will ERISA, in either such case, that could reasonably be used expected to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxhave a Material Adverse Effect.
(im) The Borrower is not an “investment company” ”, or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(jn) Except as could not reasonably The Borrower has filed all federal, state and other material income tax returns required to be expected filed by it and has paid or caused to result be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in a Material Adverse Effect, no ERISA Termination Event good faith and by proper proceedings and in respect of which the Borrower has occurred, or is reasonably expected to occur, set aside adequate reserves for the payment thereof in accordance with respect to any ERISA PlanGAAP.
(ko) Schedule B Except for the Specified Event, the Borrower and its Subsidiaries are and have been in compliance with all laws (Actuarial Information) including, without limitation, all Environmental Laws), except to the most recent annual report (Form 5500 Series) with respect extent that any failure to each ERISA Planbe in compliance, copies of which have been filed with individually or in the Internal Revenue Service and furnished to the Banksaggregate, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could not reasonably be expected to result in a Material Adverse Effect.
(lp) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) No Subsidiary of the Borrower has not incurredis party to, and does not reasonably expect to incuror otherwise bound by, any withdrawal liability agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to the Borrower, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to the Borrower, other than prohibitions and restrictions permitted to exist under ERISA to any Multiemployer Plan Section 6.01(e).
(q) The information, exhibits and (ii) neither reports furnished by the Borrower nor or any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower Subsidiaries to the Administrative Agent, any LC Issuing Bank Agent or to any Lender pursuant to or in connection with the Loan Documents and negotiation of, or compliance with, the transactions contemplated therebyCredit Documents, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, do not contain any untrue statement material misstatement of a material fact and do not omit and will not omit, when taken as a whole, to state a material fact or any fact necessary to make the statements therein, contained therein not misleading in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(or) The Borrower has and its Subsidiaries have implemented and maintains maintain in effect policies and procedures reasonably designed to ensure compliance by the Borrower, Borrower and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, Borrower and its Subsidiaries and their respective officers and employees and, and to the knowledge of the BorrowerBorrower and its Subsidiaries, its respective directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the BorrowerBorrower or its Subsidiaries or, any Subsidiary thereof to the knowledge of the Borrower or its Subsidiaries, any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that of its Subsidiaries which agent will act in any capacity in connection with or benefit from the credit term loan facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or Borrowing, use of proceeds thereof hereunder or other transaction contemplated by this Agreement Transactions will violate Anti-Corruption Laws or applicable Sanctions.
(ps) All payments due from The Borrower is not an EEA Financial Institution.
(t) The information included in each Beneficial Ownership Certification is true and correct in all respects.
(u) None of the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on Subsidiaries is an entity deemed to hold “plan assets” (within the financial statements meaning of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filedPlan Asset Regulations), and have paid all federalneither the execution, state and other Taxesdelivery nor performance of the transactions hereunder, assessmentsincluding the making of any Loan hereunder, fees and other governmental charges levied will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to Section 4975 of the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectCode.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants to the Agent, the Guarantor and the Lender that as followsof the Closing Date and each Transfer Date:
(a) The Borrower is (i) duly organized, formed and is validly existing and as a limited liability company in good standing under the laws of the jurisdiction State of its organizationDelaware with full power and authority to execute and deliver this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and (ii) each other Loan Document to which it is a party and to perform the terms and provisions hereof and thereof; the Borrower is duly qualified to do business as a foreign organization business entity in each jurisdiction good standing, and has obtained all required licenses and approvals, if any, in all jurisdictions in which the nature ownership or lease of property or the conduct of its business requires such qualifications except those jurisdictions in which failure to be so qualified would not have a material adverse effect on the business or operations of the business conducted Borrower, the Collateral, the Secured Parties or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesConveyed Property.
(b) The execution, delivery and performance All necessary action has been taken by the Borrower of to authorize the Borrower, and the Borrower has full power and authority, to execute, deliver and perform its obligations under this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and each other Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization no consent or approval or other action by, and no notice to or filing with, of any governmental authority or regulatory body Person is required for the due execution, delivery and or performance by the Borrower of this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement (including obtaining any Extensions of Credit under this Agreement) or any and each other Loan Document to which it isis a party except for any consent or approval that has previously been obtained.
(c) This Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and each other Loan Document to which it is a party have been duly executed and delivered, and the execution and delivery of this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and each other Loan Document to which it is a party by the Borrower and its performance and compliance with the terms hereof and thereof will not violate its certificate of formation or the Borrower Operating Agreement or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract or any other material agreement or instrument (including, without limitation, the Loan Documents) to which the Borrower is a party or which may be applicable to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effectBorrower or any of its assets.
(d) This Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will beto which it is a party constitute valid, the legal, valid legal and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower it in accordance with its their respective terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or and other similar laws affecting generally the enforcement of creditors’ rights and remedies generally and to general principles of equity (regardless of whether enforceability enforcement is considered sought in a proceeding Proceeding at law or in equity or at lawequity).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth is not in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLPviolation of, and the consolidated financial statements execution, delivery and performance of this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and each other Loan Document to which it is a party by the Borrower and its Subsidiaries as will not constitute a violation with respect to, any order or decree of March 31any court or any order, 2024regulation or demand of any federal, and for the fiscal quarter ended on such dateState, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such datemunicipal or governmental agency, as filed which violation might have consequences that would have a Material Adverse Effect with the SEC, copies of each of which have been furnished respect to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed No Proceeding of any kind, including but not limited to litigation, arbitration, judicial or administrative, is pending or, to the Borrower’s knowledge, threatened in the Disclosure Documents, there is no pending writing against or threatened action or proceeding affecting contemplated by the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to which would have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected Effect with respect to result in such a Material Adverse Effectthe Borrower.
(g) No event has occurred Each of the representations and warranties of the Borrower set forth in the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Borrower Operating Agreement and each other Loan Document to which it is continuing that constitutes an Event a party is, as of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothClosing Date is true and correct in all material respects.
(h) The Borrower is has not incurred debt or engaged in activities not related to the business of extending credit for transactions contemplated hereunder or under the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of Loan Documents except as permitted by the Borrower and its Subsidiaries subject to the restrictions of Operating Agreement or Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx3.04.
(i) The Borrower is not insolvent and did not become insolvent as a result of the Grant pursuant to this Loan Agreement; the Borrower is not engaged and is not about to engage in any business or transaction for which any property remaining with the Borrower is unreasonably small capital or for which the remaining assets of the Borrower are unreasonably small in relation to the business of the Borrower or the transaction; the Borrower does not intend to incur, and does not believe or reasonably should not have believed that it would incur, debts beyond its ability to pay as they become due; and the Borrower has not made a transfer or incurred an obligation and does not intend to make such a transfer or incur such an obligation with actual intent to hinder, delay or defraud any entity to which the Borrower was or became, on or after the date that such transfer was made or such obligation was incurred, indebted.
(i) Each transfer of the Conveyed Property pursuant to the Contribution Agreement is an absolute transfer for legal purposes, (ii) the Grant of the Collateral by the Borrower pursuant to the terms of this Loan Agreement is a pledge for financial accounting purposes, and (iii) the Loan shall be treated by the Borrower as indebtedness for U.S. federal income tax purposes (unless otherwise required by Applicable Law). In this regard, (i) the financial statements of SEI and its consolidated subsidiaries shall show (A) that the Conveyed Property is owned by such consolidated group and (B) that the Loan is indebtedness of the consolidated group (and shall contain appropriate footnotes describing that the assets of the Borrower shall not be available to creditors of SEI, Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Hestia Holdings, the Depositor, the Capital Markets Issuer, the Lender or any other Person other than creditors of the Borrower), and (ii) the U.S. federal income Tax Returns of SEI and its consolidated subsidiaries that are regarded entities for U.S. federal income tax purposes shall indicate that the Loan is indebtedness (unless otherwise required by Applicable Law).
(k) As of the Initial Cut-Off Date, the Aggregate Solar Loan Balance is at least $[***].
(l) The legal name of the Borrower is as set forth in this Loan Agreement; the Borrower has no trade names, fictitious names, assumed names or “doing business as” names.
(m) No item comprising the Collateral has been sold, transferred, assigned or pledged by the Borrower to any Person other than the Agent; immediately prior to the pledge of the Collateral to the Agent pursuant to this Loan Agreement, the Borrower was the sole owner thereof and had good and indefeasible title thereto, free of any Lien other than Permitted Liens.
(n) Upon the filing of the Perfection UCCs in accordance with applicable law, the Agent, for the benefit of the Secured Parties, shall have a first priority perfected Lien on the Conveyed Property and the other items comprising the Collateral and in the proceeds thereof, limited with respect to proceeds to the extent set forth in Section 9-315 of the UCC as in effect in the applicable jurisdiction, subject to Permitted Liens. All filings (including, without limitation, UCC filings) and other actions as are necessary in any jurisdiction to provide third parties with notice of and to document the transfer and assignment of the Collateral to the Borrower and to give the Agent a first priority perfected Lien on the Collateral (subject to Permitted Liens), including delivery of the Custodian Files to the Custodian, and the payment of any fees, have been made or, with respect to Termination Statements, shall be made within one Business Day of the Closing Date.
(o) None of the absolute transfers of the Conveyed Property by Sunnova Intermediate Holdings to Sunnova Hestia Holdings pursuant to the Contribution Agreement, the absolute transfers of the Conveyed Property by Sunnova Hestia Holdings to the Depositor pursuant to the Contribution Agreement, the absolute transfers of the Conveyed Property by the Depositor to the Capital Markets Issuer pursuant to the Contribution Agreement, the absolute transfers of the Conveyed Property by the Capital Markets Issuer to the Lender pursuant to the Contribution Agreement, the absolute transfers of the Conveyed Property by the Lender to the Borrower pursuant to the Contribution Agreement, or the Grant by the Borrower to the Agent pursuant to this Loan Agreement is subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(p) The Borrower is not, and after giving effect to the application of the proceeds of the Loan will not be, required to register as an “investment company” or a company “controlled” by an as such term is defined in the 1940 Act. In making this determination, the Borrower is relying primarily on the exclusions from the definition of “investment company” within the meaning contained in Section 3(c)(5)(A) and Section 3(c)(6) of the Investment Company Act of 19401940 Act, as amended.
(j) Except as could not reasonably although additional exclusions or exemptions may be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) available to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with Borrower at the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to Closing Date or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAPfuture.
(q) The Borrower is being structured so as not to constitute a “covered fund” for purposes of Section 619 of the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act of 2010, based on its Subsidiaries have filed all federal, state current interpretations.
(r) The principal place of business and other Tax returns the chief executive office of the Borrower are located in the State of Texas and reports required to be filedthe jurisdiction of organization of the Borrower is the State of Delaware, and there are no other such locations.
(s) Representations and warranties regarding the Lien and Custodian Files in each case, made as of the Closing Date and each Transfer Date:
(i) The Grant contained in the “Granting Clause” of this Loan Agreement creates a valid and continuing Lien on the Collateral in favor of the Agent for the benefit of the Secured Parties, which Lien is prior to all other Liens arising under the UCC (other than Permitted Liens), and is enforceable as such against creditors of the Borrower, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and to general principles of equity (regardless of whether enforcement is sought in a Proceeding at law or in equity).
(ii) The Borrower has taken all steps necessary to perfect its ownership interest in the Solar Loans.
(iii) The Customer Contracts related to the Solar Loans constitute either “accounts”, “chattel paper”, “electronic chattel paper”, “instruments” or “general intangibles” within the meaning of the applicable UCC. The PV Systems and XXXX Systems constitute “Equipment” within the meaning of the UCC.
(iv) The Borrower owns and has good and marketable title to the Collateral free and clear of any Lien, claim or encumbrance of any Person, other than Permitted Liens.
(v) The Borrower has caused or shall have paid caused, within ten days of the Closing Date, the filing of all federalappropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the Lien on the Collateral granted to the Agent hereunder.
(vi) The Borrower has received a Closing Date Certification on the Closing Date and a Transfer Date Certification on each Transfer Date from the Custodian which certifies that the Custodian is holding the Custodian Files that evidence the Solar Loans in the Electronic Vault for the Agent for the benefit of the Secured Parties.
(vii) Other than Permitted Liens, state the Borrower has not pledged, assigned, sold, granted a Lien on, or otherwise conveyed any portion of the Collateral. The Borrower has not authorized the filing of and is not aware of any financing statements against the Borrower that include a description of collateral covering any portion of the Collateral other Taxes, assessments, fees and other governmental charges levied than any financing statement relating to the security interest granted to the Agent hereunder or imposed upon them that have been terminated. The Borrower is not aware of any judgment or their properties, income or assets otherwise due and payabletax lien filings against the Borrower, except with respect to tax liens for amounts which have already been paid.
(aviii) Taxes Except as permitted or required by the Loan Documents no portion of any Customer Contract has any marks or notations indicating that that are being contested they have been pledged, assigned or otherwise conveyed to any Person other than the Agent, except for notations relating to Xxxxx released prior to the pledge of the Collateral to the Agent. The foregoing representations and warranties in good faith by appropriate proceedings diligently conducted Section 3.12(s)(i)-(viii) shall remain in full force and for which adequate reserves are being maintained effect and shall not be waived or amended until the Loan is paid in full or otherwise released or discharged except in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectthis Loan Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Sunnova Energy International Inc.)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Each of the Borrower and its Subsidiaries is (i) an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualificationqualification necessary, except where such failure to so qualify would not materially adversely affect result in a Material Adverse Effect. Each of the Borrower and its business, condition Subsidiaries has all requisite corporate (financial or otherwise), operations other applicable) powers and authority to own or propertieslease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower and, where applicable, each Subsidiary of this Agreement and each Loan Document to which it is, or is to become, a party, party are within the Borrower’s organizational or such Subsidiary’s corporate (or other applicable) powers, have been duly authorized by all necessary organizational action and corporate (or other applicable) action, do not contravene (i) the Borrower’s organizational documentsor such Subsidiary’s certificate of incorporation (or other applicable formation document or operating agreement), (ii) law any law, rule or regulation applicable to the Borrower or its properties, such Subsidiary or (iii) any contractual or legal restriction binding on or affecting the Borrower or such Subsidiary, and will not result in or require the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower or its propertiesSubsidiaries, except as provided or permitted in this Agreement and any other the Loan Document.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Action is required for the due executionexecution or delivery by the Borrower or its Subsidiaries of this Agreement, delivery and any other Loan Document to which it is a party or for the performance by the Borrower or its Subsidiaries of its obligations under this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, party other than those which has have previously been duly obtained, and is are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, threatened appeal or other proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or appeal with respect thereto have expired.
(d) This Agreement and the other each Loan Documents Document to which it is, the Borrower or any Subsidiary is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower or Subsidiary party thereto, enforceable against the Borrower or applicable Subsidiary in accordance with its respective terms, subjectsubject to the effect of bankruptcy, however, to any applicable bankruptcyinsolvency, reorganization, rearrangementfraudulent conveyance, moratorium or and other similar laws of general application affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)creditors generally.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or or, to the Borrower’s knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have has a Material Adverse Effect. There has been no change reasonable possibility of resulting in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2015, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Since December 31, 2015, there has been no Material Adverse Effect, or material adverse change in the facts and information regarding such entities as represented to the Closing Date.
(g) No event has occurred The making of Loans and is continuing that constitutes an Event the use of Default or that would constitute an Event the proceeds thereof will comply with all provisions of Default but for the requirement that notice be given or time elapse or bothApplicable Law in all material respects.
(h) The Neither the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of nor any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Subsidiary of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, is duly qualified as a foreign 47 42 corporation and is in good standing in each jurisdiction as to which the location of its assets or the nature of its business makes qualification necessary (iexcept where the failure to so qualify and be in good standing would not have a material adverse effect on its business, prospects, condition (financial or otherwise) or operations) and has all power, corporate or otherwise, to conduct its business and to own, or hold under lease, its assets, and to execute and deliver, and to perform all of its obligations under, each of the Loan Documents to which it is or will be a party. Each of the Borrower's Subsidiaries other than Immaterial Subsidiaries is a corporation, limited liability company or partnership duly organized, validly existing and in good standing under the laws of the its respective jurisdiction of its organization, and (ii) is duly qualified to do business as a foreign organization corporation, limited liability company or partnership and is in good standing in each jurisdiction in as to which the location of its assets or the nature of the its business conducted or the property owned, operated or leased by it requires such qualification, makes qualification necessary (except where the failure to so qualify and be in good standing would not materially adversely affect have a material adverse effect on its business, prospects, condition (financial or otherwise) or operations), operations and has all power (corporate, limited liability company, partnership or propertiesotherwise) to conduct its business and to own, or hold under lease, its assets, and to execute and deliver, and to perform all of its obligations under, each of the Loan Documents to which it is or will be a party.
(b) The execution, delivery and performance by the Borrower each Loan Party of each Loan Document to which it is, is or is to become, will be a party, party are within the Borrower’s organizational such Loan Party's corporate, limited liability company or partnership powers, have been duly authorized by all necessary organizational action corporate, limited liability company or partnership action, and do not contravene (i) the Borrower’s organizational documentssuch Loan Party's certificate or articles of incorporation, by-laws or other constituent instruments, or (ii) law applicable to any law, rule, regulation (including, without limitation, Regulation T, U or X of the Borrower Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award binding on or affecting such Loan Party or any of its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower such Loan Party or any of its properties, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than Liens created under the Loan Documents); and no Loan Party is in default in any material respect under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination, award or restriction.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower any Loan Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is or is to become, will be a party, party except for the FERC Authorization, those which has have been duly obtained, obtained or made and is are in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which each Loan Party will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation of the Borrower such Loan Party enforceable against the Borrower such Loan Party in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements Consolidated balance sheets of the Borrower and its Subsidiaries as of at December 31, 20231998 and September 30, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, 1999 and the consolidated financial related Consolidated statements of operations, stockholders' equity and cash flow of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter year and nine months, respectively, then ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bankthe Agent. Such financial statements, and all financial statements hereafter delivered pursuant to Sections 6.04(b) and (c), fairly present present, or will fairly present, the consolidated financial condition of the Borrower and its Subsidiaries as at such the dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods then ended on such datesor ending, all in accordance with GAAPgenerally accepted accounting principles consistently applied. Since September 30, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20231999, there has been no material adverse change change, in the business, prospects or condition (financial condition or otherwise) or in the results of operations of the BorrowerBorrower and its Subsidiaries taken as a whole except as disclosed in filings since such date with the Securities and Exchange Commission.
(f) Except Each Loan Party has good title to its portion of the Collateral, free and clear of all Liens, except for Permitted Liens. Each Lease or other agreement relating to the Real Property described in Schedule I operated by each Loan Party is a valid and subsisting Lease or other agreement and is in full force and effect in accordance with the terms thereof, and the Borrower or its Subsidiary is in possession of all such leaseholds and, except as disclosed set forth in the Disclosure DocumentsSchedule I, there is no pending or threatened action or proceeding affecting material default by the Borrower or any of its Subsidiaries exists under any such Lease or other agreement and, to the best of the Borrower's knowledge, no lessor has any accrued right to terminate any such Lease or other agreement on account of a default by the Borrower or its Subsidiaries.
(g) Each Service Agreement is a valid and subsisting agreement and is in full force and effect in accordance with the terms thereof, and no material default by the Borrower or any of its Subsidiaries exists under any Service Agreement and, to the best of the Borrower's knowledge, no party to any of the Service Agreements has any accrued right to terminate any Service Agreement on account of a default by the Borrower or any of its Subsidiaries, provided that the Borrower has received notices containing claims of breach from those parties as set forth on Schedule III, which claims of breach the Borrower has denied.
(h) Other than as set forth on Schedule VI, no judgment, order, decree, injunction or other restraint affecting any Loan Party has been rendered or imposed by any court, governmental agency or arbitrator, and there is no pending or, to the best knowledge of the Borrower, threatened action or proceeding affecting any Loan Party before any court, governmental agency or arbitrator that arbitrator, which could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
material adverse effect on the business, prospects or condition (gfinancial or otherwise) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets operations of the Borrower and its Subsidiaries subject Subsidiaries, taken as a whole, or which purports to affect the restrictions legality, validity or enforceability of Section 5.02(a), (c) this Agreement or (d) will consist of or be represented by Xxxxxx Xxxxxany other Loan Document.
(i) The Set forth on Schedule II is a complete and accurate list of all of the Subsidiaries of the Borrower, other than Immaterial Subsidiaries, as of the date hereof, showing as of such date (as to each such Subsidiary) the nature of its organization, the jurisdiction of its organization, the number of shares or the amount of interests of each class of Securities outstanding on the date hereof, the direct owner of the outstanding shares or the amount of interests of each such class owned, and the jurisdictions in which such Subsidiary is qualified to do business as a foreign entity. There are no outstanding options, warrants, rights of conversion or purchase, and similar rights to acquire Securities of any of such Subsidiaries, except as set forth on Schedule II, and all of the outstanding Securities of all of such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Borrower is not an “investment company” or a company “controlled” by an “investment company” within Guarantor free and clear of (i) all Liens except for Liens under the meaning of Collateral Documents and (ii) any restrictions (other than laws, rules or regulations) on the Investment Company Act of 1940, as amendedability to vote or alienate such Securities.
(j) Except as could All information, exhibits and reports furnished in writing by or on behalf of the Borrower or any of its Subsidiaries other than Immaterial Subsidiaries and made available to the Agent or any Bank relating to the condition (financial or otherwise), operations, business or properties of the Borrower or such Subsidiary, are true, correct and complete and not reasonably be expected to result misleading in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Planall material respects.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with With respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements all business plans and other written information forecasts and projections furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages Subsidiaries other than Immaterial Subsidiaries and employee and retiree health and welfare insurance and other benefits have been paid made available to the Agent or properly accrued on any Bank relating to the financial statements condition, operations, business, properties or prospects of the Borrower or such ERISA AffiliateSubsidiary, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.best of the
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, qualification necessary (except where the failure to so qualify would not materially adversely affect its business, condition (financial or otherwiseconstitute a Material Adverse Change), operations or properties.
(b) The execution, delivery and performance by the Borrower of each this Agreement and the other Loan Document Documents to which it is, is or is to become, will be a party, party are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not and will not contravene (i) the Borrower’s organizational documents's charter or by-laws, (ii) law applicable to the Borrower or its propertiesany law, or (iii) any legal or contractual or legal restriction binding on or affecting the Borrower Borrower; and such execution, delivery and performance do not and will not result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for in connection with the due execution, delivery and or performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any Loan Document, other Loan Document to which it isthan Release No. 27542, or is to become70-10052, a partyissued by the Securities and Exchange Commission on June 21, except for the FERC Authorization2002, which has been duly obtained, release is final and is in full force and effecteffect and not subject to appeal, rehearing, review or reconsideration.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subjectsubject to the qualifications, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general principles application affecting rights and remedies of equity (regardless creditors and that the remedy of whether enforceability specific performance or of injunctive relief is considered in a proceeding in equity or at law)subject to the discretion of the court before which any proceedings therefor may be brought.
(e) Since December 31, 2001, there has been no Material Adverse Change.
(f) The audited consolidated financial statements balance sheets of the Borrower and its Subsidiaries as of at December 31, 20232001, and for the year ended on such daterelated audited consolidated, as set forth in and, with respect to the Borrower’s Annual Report on Form 10-K , consolidating, statements of income of the Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLPthen ended, and the unaudited consolidated financial statements balance sheets of the Borrower and its Subsidiaries as at June 30, 2002 and the related unaudited consolidated statements of March 31, 2024, and income for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10six-Q for the fiscal quarter ended on such date, as filed with the SECmonth period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the six months ended June 30, 2002, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance accordance, in all material respects, with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(fg) Except as disclosed in the Disclosure DocumentsBorrower's Report on Form 10-K for the year ended December 31, 2001 and Report on Form 10-Q for the period ended June 30, 2002, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries or properties before any court, governmental agency or arbitrator arbitrator, that could might reasonably be expected to have constitute a Material Adverse Effect. There has Change; and since December 31, 2001 there have been no change material adverse developments in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default action or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothproceeding so disclosed.
(h) The Borrower No ERISA Event has occurred or is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of reasonably expected to occur with respect to any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Plan of the Borrower and or any of its Subsidiaries subject ERISA Affiliates which would result in a material liability to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning Borrower. No "prohibited transaction" has occurred with respect to any Plan of the Investment Company Act of 1940, as amended.
(j) Except as could not Borrower that is reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) material liability to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither Borrower. Neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower nor reasonably expects to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in incur any material respect; provided that, with respect withdrawal liability under ERISA to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedany Multiemployer Plan.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows, which representations and warranties shall be deemed repeated on each day on which an Advance is made or a Release is made:
(a) The Borrower is (i) a corporation organized, duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction State of Delaware, its organizationorganizational identification number is 3887926, and (ii) it is duly qualified to do business as a foreign organization business, and is in each good standing, in every jurisdiction in which where the nature of the its business conducted or the property owned, operated or leased by requires it requires such qualification, except where failure to be so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesqualified.
(b) The execution, delivery and performance by the Borrower of each Loan Document the Transaction Documents to which it isis a party and the other documents to be delivered by it hereunder, or is to becomeincluding the Borrower's use of the proceeds of Advances, a party, (i) are within the Borrower’s organizational 's corporate powers, (ii) have been duly authorized by all necessary organizational action and corporate action, (iii) do not contravene (iA) the Borrower’s organizational documents's Charter Documents, (iiB) law any law, rule or regulation applicable to the Borrower or its propertiesBorrower, or (iiiC) any contractual or legal restriction binding on or affecting the Borrower or its propertiesproperty or (D) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower or its property, and (iv) do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties (except for the interest created pursuant to this Agreement). Each of the Transaction Documents to which the Borrower is a party has been duly executed and delivered by the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) the Transaction Documents to which it is a party or any other Loan Document document to which it is, or is to become, a partybe delivered thereunder, except for the FERC Authorization, filing of UCC financing statements which has been duly obtained, are referred to herein and is in full force and effecttherein.
(d) This Agreement and Each of the other Loan Transaction Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, subject to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)Enforceability Exceptions.
(e) The consolidated financial statements Since its date of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023formation, there has been no material adverse change in the financial condition or operations of the Material Adverse Change with respect to Borrower.
(fi) Except There is no pending or threatened action, investigation or proceeding affecting the Borrower before any court, governmental agency or arbitrator and (ii) except as set forth in Schedule 4.01(f) or as otherwise disclosed by the Parent in the Disclosure Documentsits publicly available SEC filings, there is no pending or threatened action action, investigation or proceeding affecting the Borrower Parent or any of its other Subsidiaries before any court, governmental agency or arbitrator that which if determined adversely to any of them, could reasonably be expected to have a Material Adverse Effect. There has been no change expected, individually or in any matter disclosed in such filings that could reasonably be expected the aggregate, to result in such a Material Adverse Effect.
(g) No event has occurred and proceeds of any Advances will be used to acquire any equity security of a class which is continuing that constitutes an Event registered pursuant to Section 12 of Default or that would constitute an Event the Securities Exchange Act of Default but for the requirement that notice be given or time elapse or both1934.
(h) The Borrower is not engaged the legal and beneficial owner of the Collateral free and clear of any Adverse Claim. The Program Agent for the benefit of the Investors and the Banks has a valid and perfected first priority security interest in the business of extending credit for the purpose of purchasing Collateral. No effective financing statement or carrying Margin Stockother instrument similar in effect covering any Collateral is on file in any recording office, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% except those filed in favor of the value of Program Agent relating to this Agreement and those filed pursuant to the assets Purchase Agreements. Each Receivable characterized in any Borrower Report or other written statement made by or on behalf of the Borrower and its Subsidiaries subject to as an Eligible Receivable, or included in the restrictions Net Receivables Pool Balance is, as of Section 5.02(athe date of such Borrower Report or other statement (or, if applicable, as of a date certain specified in such report), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxan Eligible Receivable and is properly included in the Net Receivables Pool Balance.
(i) The Each Borrower is not an “investment company” Report, Weekly Report, Payment Direction, and Daily Report (in each case if prepared by the Borrower or a company “controlled” by an “investment company” within the meaning one of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurredits Affiliates, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with extent that information contained therein is supplied by the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA PlanBorrower or an Affiliate), and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effectall written information, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reportsexhibits, financial statements statements, documents, books, records and other written information reports furnished or to be furnished at any time by or on behalf of the Borrower to the Administrative Program Agent, any LC Issuing Bank the Investor Agents, the Investors or any Lender pursuant to or the Banks in connection with and before or after the Loan Documents and the transactions contemplated thereby, when considered date of this Agreement are or will be accurate in their totality together with the information set forth in the Borrower’s periodic reports filed all material respects as of any the date of determination with the SEC under the Securities Exchange Act of 1934so furnished (or, if applicable, as amendedof a date certain specified in such report), do not and no such document contains or will contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not or omits or will omit and will not omit, when taken as a whole, to state any a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections misleading.
(j) The principal place of business and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control chief executive office of the Borrower and actual results may vary from the projections office where the Borrower keeps its books and records concerning the Collateral are located at the address or addresses referred to in Section 5.01(b).
(k) The names and addresses of all the Deposit Banks, together with the post office boxes and account numbers of the Lockboxes, Deposit Accounts, Borrower's Account and all other deposit accounts of Borrower are as specified in Schedule 4.01(k) hereto, as such variations Schedule 4.01(k) may be material andupdated from time to time pursuant to Section 5.01(g). The Lockboxes and Deposit Accounts are the only post office boxes and bank accounts into which Collections of Receivables are deposited or remitted. The Borrower has delivered to the Program Agent (i) a fully executed Deposit Account Agreement with respect to each Deposit Account and any associated Lockboxes and (ii) a fully executed Account Control Agreement with respect to Borrower's Account and each other deposit account of Borrower.
(l) The Borrower has advised its independent certified public accountants that the Program Agent and Investor Agents have been authorized to review and discuss with such accountants, accordinglyas they may reasonably request, any and all financial statements and other information of any kind that such accountants may have which relate to the Collateral, and the Borrower gives no representation has directed such accountants to comply with any reasonable request of the Program Agent or any Investor Agent for such information.
(m) The Borrower is not known by and warranty that such projections and forward looking statements will be achieveddoes not use any tradename or doing-business-as name.
(n) As of The Borrower was incorporated on December 6, 2004, and the Borrower did not engage in any business activities prior to the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) of this Agreement. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance no Subsidiaries. SPE I is the sole owner of the Stock issued by the Borrower, its Subsidiaries all of which is validly issued, fully paid and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctionsnonassessable, and there are no options, warrants or other rights to acquire any Stock in the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Receivables Financing Agreement (Hayes Lemmerz International Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit Advances under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 20232021, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each a copy of which have has been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232021, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of CreditAdvance, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank Agent or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(r) The Borrower does not own any real or personal property or other facilities in the State of Arkansas, except for an undivided twenty-five percent ownership interest in the Independence Steam Electric Station at Newark, Arkansas, and the Borrower does not maintain any service territory or serve any retail customers in the State of Arkansas.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower it is (i) duly organized, validly a port authority and a body corporate and politic organized and existing and in good standing under the laws of the jurisdiction State of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.Ohio;
(b) it has duly accomplished all conditions necessary to be accomplished by it prior to the issuance and delivery of the State Assistance, and the execution and delivery of the Loan Documents to which it is a party;
(c) to the best of its knowledge, it is not in violation of or in conflict with any provisions of the laws of the State that would impair materially its ability to carry out its obligations as set forth in any Loan Document to which it is a party;
(d) it has full power and authority to execute, deliver and perform the Loan Documents to which it is a party, to grant security interests under the other Security Documents to which it is a party, and to enter into and carry out the transactions contemplated thereby. Such execution, delivery and performance, and the grant of all security interests under the Security Documents, do not, and will not, violate any provision of law or any court order applicable to the Project, the Borrower, or the Governing Instruments of the Borrower and do not, and will not, conflict with or result in a default, under any agreement or instrument to which the Borrower is a party or by which it or any of its property or assets is or may be bound. The Loan Documents have, by proper action, been duly authorized, executed and delivered and constitute legal, valid and binding obligations of the Borrower, subject to bankruptcy, fraudulent conveyance and similar laws affecting creditors’ rights and the application of equitable principles and public policy;
(e) no consent, approval or authorization of or declaration, registration or filing with any Governmental Authority or nongovernmental person or entity, including any creditor of the Borrower, is required in connection with the execution, delivery and performance of this Agreement or any of the Loan Documents other than the recordation of a UCC Financing Statement, except for consents, approvals or authorizations of or declarations or filings with any Governmental Authority or non-governmental person or entity that have been obtained or made;
(f) it has duly authorized the execution, delivery and performance of the Loan Documents to which it is a party and of the transactions contemplated thereunder;
(g) it will do all things in its power in order to maintain its existence or assure the assumption of its obligations under the Loan Documents to which it is a party by the Borrower of any successor public body;
(h) each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have party has been duly authorized by all necessary organizational action executed and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance delivered by the Borrower and, assuming the due authorization and execution of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any the applicable Loan Documents by the other parties thereto, all steps necessary to have been taken by the Borrower to constitute each Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the a legal, valid valid, binding and binding enforceable obligation of the Borrower enforceable against the Borrower in accordance with its termsBorrower, subject, however, subject to any applicable bankruptcy, reorganization, rearrangement, moratorium or fraudulent conveyance and similar laws affecting generally the enforcement of creditors’ rights and remedies the application of equitable principles and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).public policy, have been taken;
(ei) The consolidated the provision of financial statements assistance pursuant to the Financing Approval Documents and the Loan Documents has induced the Borrower to assist in the Provision of the Project, thereby creating new jobs or preserving existing jobs and employment opportunities and improving the economic welfare of the people of the State;
(j) there are no actions, suits or proceedings pending for which Xxxxxxxx has been served notice or process or, to the best of Borrower’s knowledge, threatened in writing against or affecting the Borrower, which, if adversely determined, would individually or in the aggregate materially impair the ability of the Borrower and to perform any of its Subsidiaries as of December 31, 2023, and for obligations under the year ended on such date, as set forth in Loan Documents or adversely affect the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results Borrower;
(k) it is not in default under any of the operations of the Borrower and its Subsidiaries for the periods ended on such datesLoan Documents, in accordance with GAAP, subject, or in the case payment of any indebtedness for borrowed money or under any agreement or instrument evidencing any such financial statements for the fiscal quarter ended March 31indebtedness, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event which by notice, the passage of Default time or that otherwise would constitute an Event any such event of Default but default provided that, no representation is made as to the payment of Borrower indebtedness or any agreement or instrument evidencing any such indebtedness where the source of payment of the indebtedness or performance of the agreement or instrument is payments or performance required to be made to, or for the requirement that notice be given benefit of, the Borrower by an unrelated third party under a financing lease, installment sale agreement or time elapse loan agreement or both.the property financed thereunder or proceeds of property financed by the Borrower under such an arrangement;
(hl) The Borrower is not engaged a party in the business of extending credit for the purpose of purchasing interest to any plan defined or carrying Margin Stockregulated under ERISA, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to are not “plan assets” of any employee benefit plan covered by ERISA or Section 4975 of the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.Code;
(im) The Borrower is not an a “investment company” or a company “controlled” by an “investment companyforeign person” within the meaning of the Investment Company Act Section 1445 or 7701 of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.Code;
(ln) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither determined that the none of the Borrower nor any of its ERISA Affiliates has incurred any liability the officers, directors, principals, employees or obligation under owners of the WARN Act, which remains unpaid or unsatisfied.Borrower are on the list of Specially Designated Nationals and Blocked Persons promulgated by the United States Department of the Treasury and located on the internet at xxxxx://xxxx.xxxxxxxx.xxx/policy-issues/financial- sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists;
(mo) The reportsno representation or warranty of the Borrower contained in any of the Loan Documents, and no statement contained in any certificate, schedule, list, financial statements and statement or other written information instrument furnished to the Director by or on behalf of the Borrower to (including, without limitation, the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, Application) contains any untrue statement of a material fact and do not omit and will not omitwhen made, when taken as a whole, or omits to state any a material fact necessary to make the statements therein, contained herein or therein not misleading when made. All representations and warranties made by the Borrower in the light any of the circumstances under which they were or will be madeLoan Documents, not misleading and any statement contained in any material respectcertificate, schedule, list, financial statement or other instrument furnished to the Director by or on behalf of the Borrower (including, without limitation, the Application) are hereby incorporated herein by reference thereto; provided that, with respect as to projections any matters involving the HOFV Complex or the Project, including without limitation, its condition, cost, funding, operation or prospects, or involving the TDD Bonds Beneficiary or the Guarantor and forward looking statementstheir respective condition, financial or otherwise, function, operation, performance or prospects, any representation or warranty made by the Borrower is based exclusively on and qualified by information, representations and warranties made by the TDD Bonds Beneficiary and the Guarantor as to those matters, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time having not made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control any independent investigation; and
(p) all proceeds of the Borrower and actual results may vary from State Assistance shall be used for the projections and such variations may be material and, accordingly, payment or reimbursement to the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As TDD Bonds Beneficiary of Allowable Costs relating to Provision of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed Project. No part of any such proceeds shall be knowingly paid to ensure compliance or retained by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in partner, member, officer, shareholder, director or employee of the Borrower as a fee, kick- back or consideration of any capacity type. The Borrower has no identity of interest with any supplier, contractor, architect, subcontractor, laborer or materialman performing work or services or supplying materials in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements Provision of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAPProject.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Loan Agreement (Hall of Fame Resort & Entertainment Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationin which it is organized, and (ii) each Significant Subsidiary of the Borrower is duly qualified to do business as a foreign organization organized, validly existing and in each good standing under the laws of the jurisdiction in which the nature of the business conducted it is formed or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesotherwise organized.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, become a party, and the consummation of the transactions contemplated hereby, are within the Borrower’s organizational limited liability company powers, have been duly authorized by all necessary organizational action action, and do not contravene (i) the Borrower’s organizational documentscertificate of formation or limited liability company agreement, (ii) law applicable to binding or affecting the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Each Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which party has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this the Borrower. This Agreement is, and and, upon execution and delivery thereof thereof, each other Loan Document will be, be the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable except as the enforceability thereof may be limited by bankruptcy, reorganizationinsolvency, rearrangement, moratorium fraudulent conveyance or other similar laws affecting generally the enforcement of creditors’ rights in general, and remedies and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether enforceability such remedy is considered sought in a proceeding in equity or at law)) and subject to requirements of reasonableness, good faith and fair dealing.
(d) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery and performance by the Borrower of any Loan Document to which it is, or is to become, a party other than with respect to the Borrower such Approvals, if any, that have been duly issued and are in full force and effect and not subject to review or appeal.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Significant Subsidiaries before any Governmental Authority or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated financial statements balance sheets of the Borrower and its Consolidated Subsidiaries as of at December 31, 20232014 and June 30, 2015 and the related consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for the year fiscal periods then ended on such date(accompanied by, as set forth in the Borrower’s Annual Report on Form 10-K case of such financial statements for the fiscal year ended on such dateDecember 31, as filed with the SEC2014, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECan independent registered public accounting firm), copies of each of which have been furnished to each BankLender, fairly present (subject, in the case of such financial statements for the fiscal quarter ended June 30, 2015, to year-end adjustments) the consolidated financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the fiscal periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotesgenerally accepted accounting principles consistently applied. Except as disclosed in the Disclosure Documents, since Since December 31, 20232014, there has been no material adverse change in the financial condition or operations of Material Adverse Change as to the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockwritten statement, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Creditinformation, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reportsreport, financial statements and other written information statement, exhibit or schedule furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank Agent or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated therebysyndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as contains, or will contain any material misstatement of any date of determination with the SEC under the Securities Exchange Act of 1934fact or intentionally omitted, as amendedomits, do not contain and or will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were were, are, or will be made, not misleading misleading.
(h) Except as disclosed in any material respect; provided that, with respect to projections and forward looking statementsthe Disclosure Documents, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control each Significant Subsidiary of the Borrower is in material compliance with all laws (including ERISA and actual results may vary from the projections Environmental Laws) rules, regulations and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedorders of any Governmental Authority applicable to it.
(ni) As No failure to satisfy the minimum funding standard applicable to a Plan for a plan year (as described in Section 302 of ERISA and Section 412 of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(oInternal Revenue Code) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, whether or not waived, has occurred with respect to any Plan. The Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. The Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. The Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plans, if any. As used herein, the term “Plan” means an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established or maintained, or to which contributions are or have been made or should be made according to the terms of the plan, by the Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” means any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” means any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any Subsidiary outside of the United States primarily for the benefit of individuals, substantially all of whom are non-residents of the United States.
Appears in 1 contract
Samples: Term Credit Agreement (AEP Transmission Company, LLC)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, is duly qualified as a foreign corporation and is in good standing in each jurisdiction as to which the location of its assets or the nature of its business makes qualification necessary, and has all power, corporate or otherwise, to conduct its business and to own, or hold under lease, its assets, and to execute and deliver, and to perform all of its obligations under, each of the Loan Documents to which it is or will be a party. Each of the Borrower's Subsidiaries other than Immaterial Subsidiaries is a corporation, limited liability company or partnership duly organized, validly existing and in good standing under the laws of the its respective jurisdiction of its organization, and (ii) is duly qualified to do business as a foreign organization corporation, limited liability company or partnership and is in good standing in each jurisdiction in as to which the location of its assets or the nature of the its business conducted or the property ownedmakes qualification necessary, operated or leased by it requires such qualificationand has all power (corporate, except where failure to so qualify would not materially adversely affect its businesslimited liability company, condition (financial partnership or otherwise)) to conduct its business and to own, operations or propertieshold under lease, its assets, and to execute and deliver, and to perform all of its obligations under, each of the Loan Documents to which it is or will be a party.
(b) The execution, delivery and performance by the Borrower each Loan Party of each Loan Document to which it is, is or is to become, will be a party, party are within the Borrower’s organizational such Loan Party's corporate, limited liability company or partnership powers, have been duly authorized by all necessary organizational action corporate, limited liability company or partnership action, and do not contravene (i) the Borrower’s organizational documentssuch Loan Party's certificate or articles of incorporation, by-laws or other constituent instruments, or (ii) law applicable to any law, rule, regulation (including, without limitation, Regulation T, U or X of the Borrower Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award binding on or affecting such Loan Party or any of its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower such Loan Party or any of its properties, and do not result in or require the creation of any Lien upon or with respect to any of its properties; and no Loan Party is in default in any material respect under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination, award or restriction.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower any Loan Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is or is to become, will be a party, party except for the FERC Authorization, those which has have been duly obtained, obtained or made and is are in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which each Loan Party will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation of the Borrower such Loan Party enforceable against the Borrower such Loan Party in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements Consolidated balance sheets of the Borrower and its Subsidiaries as of at December 31, 20231996 and September 30, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, 1997 and the consolidated financial related Consolidated statements of operations, stockholders' equity and cash flow of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter year and nine months, respectively, then ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bankthe Agent. Such financial statements, and all financial statements hereafter delivered pursuant to Sections 6.04(b) and (c), fairly present present, or will fairly present, the consolidated financial condition of the Borrower and its Subsidiaries as at such the dates thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods then ended on such datesor ending, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotesgenerally accepted accounting principles consistently applied. Except as disclosed in the Disclosure Documents, since Since December 31, 20231996, there has been no material adverse change change, in the business, prospects or condition (financial condition or otherwise) or in the results of operations of the BorrowerBorrower and its Subsidiaries taken as a whole.
(f) Except as disclosed Each Loan Party has good title to all of its material property, free and clear of all Liens, except for Permitted Liens. Each Lease or other agreement relating to the Real Property described in Schedule I operated by each Loan Party is a valid and subsisting Lease or other agreement and is in full force and effect in accordance with the Disclosure Documentsterms thereof, there and the Borrower or its Subsidiary is in possession of all such leaseholds and no pending or threatened action or proceeding affecting material default by the Borrower or any of its Subsidiaries exists under any such Lease or other agreement and, to the best of the Borrower's knowledge, no lessor has any accrued right to terminate any such Lease or other agreement on account of a default by the Borrower or its Subsidiaries.
(g) Each Service Agreement is a valid and subsisting agreement and is in full force and effect in accordance with the terms thereof, and no material default by the Borrower or any of its Subsidiaries exists under any Service Agreement and, to the best of the Borrower's knowledge, no party to any of the Service Agreements has any accrued right to terminate any Service Agreement on account of a default by the Borrower or any of its Subsidiaries.
(h) Other than as set forth on Schedule VI, no judgment, order, decree, injunction or other restraint affecting any Loan Party has been rendered or imposed by any court, governmental agency or arbitrator, and there is no pending or, to the best knowledge of the Borrower, threatened action or proceeding affecting any Loan Party before any court, governmental agency or arbitrator that arbitrator, which could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
material adverse effect on the business, prospects or condition (gfinancial or otherwise) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets operations of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a)Subsidiaries, (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.as
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower Effective as of the Initial Closing Date, and the date of each Advance and the date of issuance of each Letter of Credit, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants as follows:
(ain addition to any representations or warranties made in any Officer's or Secretary's Certificate delivered pursuant hereto, which representations and warranties are incorporated herein by reference) The Borrower is (i) duly organized, validly existing and in good standing under the laws to each of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which other parties hereto that the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document Operative Agreement to which it is, is or is to become, will be a party, are within either in its individual capacity or (assuming due authorization, execution and delivery of the Borrower’s organizational powersTrust Agreement by the Bank) as the Owner Trustee, have as the case may be, has been duly authorized by all necessary organizational action on its part and do not contravene (i) neither the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will bethereof, nor the legal, valid and binding obligation consummation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered nor compliance by it with any of the terms and provisions thereof (i) does or will require any approval or consent of any trustee or holders of any of its indebtedness or obligations, (ii) does or will contravene any Legal Requirement relating to its banking or trust powers, (iii) does or will contravene or result in their totality together with the information set forth any breach of or constitute any default under, or result in the Borrower’s periodic reports filed as creation of any date Lien upon any of determination with its property under, (A) its charter or by-laws, or (B) any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement or other agreement or instrument to which it is a party or by which it or its properties may be bound or affected, which contravention, breach, default or Lien under clause (B) would materially and adversely affect its ability, in its individual capacity or as the SEC Owner Trustee, to perform its obligations under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as Operative Agreements to which it is a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were party or (iv) does or will be made, not misleading in require any material respect; provided that, with respect to projections Governmental Action by any Governmental Authority regulating its banking or trust powers. The Owner Trustee further reaffirms its representations and forward looking statements, the Borrower represents only warranties under each Bond Document and agrees that such information was prepared in good faith based upon assumptions each and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no every representation and warranty that such projections made therein and forward looking statements will be achieved.
(n) As in any certificate or other document executed and delivered in connection therewith is true and accurate as of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respectshereof.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The To induce the Banks and the Agent to execute and deliver this Amendment (which representations and warranties shall survive the execution and delivery of this Amendment), the Borrower represents and warrants as followsto the Agent and the Banks that:
(a) The Borrower is this Amendment and the Amended M&I Revolving Note (ias defined in Section 5 hereof) have been duly organizedauthorized, validly existing executed and in good standing under delivered by it and this Amendment and the laws Amended M&I Revolving Note constitute the legal, valid and binding obligation of the jurisdiction of its organizationBorrower enforceable against the Borrower in accordance with their respective terms, and (ii) duly qualified subject to do business limitations as a foreign organization in each jurisdiction in to enforceability which the nature of the business conducted might result from bankruptcy, insolvency, reorganization, moratorium or the property owned, operated similar laws or leased by it requires such qualification, except where failure equitable principles relating to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.limiting creditors' rights generally;
(b) The executionthe Credit Agreement, delivery and performance as amended by the Borrower of each Loan Document to which it isthis Amendment, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, subject to any applicable limitations as to enforceability which might result from bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar laws affecting generally or equitable principles relating to or limiting creditors' rights generally;
(c) the enforcement execution, delivery and performance by the Borrower of creditors’ rights the Amendment and remedies the Amended M&I Revolving Note (i) have been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) do not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to general principles which it is a party or by which any of equity its properties or assets are or may be bound, or (regardless of whether enforceability is considered B) result in a proceeding breach of or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in equity clause (iii)(A)(3) of this Section 4(c);
(d) as of the date hereof, no unwaived Default or at law).Event of Default has occurred which is continuing; and
(e) The consolidated financial statements all the representations and warranties contained in Section 4 of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements Agreement are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented material respects with the same force and maintains in effect policies and procedures designed to ensure compliance as if made by the Borrower, its Subsidiaries Borrower on and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge as of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctionsdate hereof.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Norstan Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction State of its organization, and Maryland (ii) is duly qualified and in good standing as a foreign corporation authorized to do business as a foreign organization in each every jurisdiction in which where the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect results in a Material Adverse Change and (iii) has the requisite corporate power and authority to own its business, condition (financial or otherwise), operations or propertiesproperties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower of each Loan Document this Agreement and the other Credit Documents to which it is, or is to become, a party, party are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) the Borrower’s organizational documents, charter or by-laws or (ii) any law applicable to the Borrower or its properties, or (iii) any material contractual or legal restriction binding on or affecting the Borrower or its Subsidiaries, and do not result in or require the creation of any Lien upon or with respect to any of the Borrower’s properties, except as provided in Section 6.02(b).
(c) No The Borrower (i) possesses good and marketable title to all of its properties and assets and (ii) owns or possesses all licenses and permits necessary for the operation by it of its business as currently conducted, except, in each of clauses (i) and (ii), to the extent that the failure to do so would not have a Material Adverse Effect.
(d) Other than as disclosed on Schedule IV, no authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body is required for the due execution, delivery and or performance by the Borrower of this Agreement (including obtaining any Extensions of and the other Credit under this Agreement) or any other Loan Document Documents to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(de) This Agreement and the other Loan Credit Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, the Borrower and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, are the legal, valid and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower in accordance with its their respective terms, subject, however, except to any applicable the extent that enforcement may be limited by bankruptcy, reorganization, rearrangement, moratorium insolvency or similar laws affecting generally the enforcement of creditors’ rights generally and remedies and to by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equity.
(ef) The audited consolidated financial statements balance sheet of the Borrower and its Subsidiaries as of at December 31, 20232015, and the related audited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, copies of each of which have been furnished to the Administrative Agent, and each of the financial statements delivered by the Borrower pursuant to Section 5.03(b) and Section 5.03(c) hereof fairly present in all material respects (subject, in the case of such unaudited financial statements, to year-end adjustments and the absence of footnotes) the financial condition of Borrower and its Subsidiaries as at such dates and the results of the operations of Borrower and its Subsidiaries for the periods ended on such datedates, all in accordance with GAAP. Since December 31, 2015, there has been no Material Adverse Change.
(g) The Borrower is not engaged principally, or as set forth one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to buy or carry any Margin Stock or to extend credit to others for the purpose of buying or carrying any Margin Stock. After the making of each Extension of Credit, Margin Stock will constitute less than 25 percent of the assets of the Borrower and its Subsidiaries on a consolidated basis.
(h) The Borrower is not in violation of, and no condition exists that with notice or lapse of time or both would constitute a violation by the Borrower of, the Margin Regulations with respect to any Extension of Credit hereunder.
(i) The Borrower has filed or caused to be filed all material Federal, state and local tax returns that to its knowledge are required to be filed by it, and has paid or caused to be paid all material taxes shown to be due and payable on such returns or on any assessments received by it to the extent required to be filed and paid pursuant to Section 5.01(a).
(j) The Borrower is in compliance with all laws (including ERISA and environmental laws), rules, regulations and orders of any Governmental Authority applicable to it, except to the extent that the Borrower’s failure to so comply does not result in a Material Adverse Change.
(k) Except as does not result in a Material Adverse Change, the Borrower and each ERISA Affiliate of the Borrower (i) have not incurred any liability to the PBGC (other than for the payment of current premiums that are not past due) with respect to any Title IV Plan, (ii) have not incurred any Withdrawal Liability, and (iii) have not been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA.
(l) Except as does not result in a Material Adverse Change, no ERISA Event has occurred.
(m) Except as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015 (the “Form 10-K”) and all Periodic Reports on such date, as Form 8-K filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, Securities and Exchange Commission prior to the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECdate hereof, copies of each of which have been furnished delivered to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure DocumentsAdministrative Agent, there is no pending or or, to the Borrower’s knowledge, threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for arbitrator, which materially adversely affects the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets financial condition of the Borrower and its Subsidiaries subject taken as a whole, or the enforceability against the Borrower of this Agreement and the other Credit Documents to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxwhich it is a party.
(in) The Borrower is not an “investment company” or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(jo) Except as could The proceeds of the Extensions of Credit hereunder will be used in accordance with Section 5.01(h).
(p) The Borrower has no secured Indebtedness, except to the extent permitted under Section 5.02(a).
(q) The Borrower is not reasonably be expected in default in any respect under any contract, lease, loan agreement, indenture, mortgage, security agreement or other agreement or obligation to result which it is a party or by which any of its properties is bound, which default results in a Material Adverse Effect, no ERISA Termination Change. No Unmatured Default or Event has occurred, or of Default presently exists and is reasonably expected to occur, with respect to any ERISA Plancontinuing.
(kr) Schedule B The financial statements, documents, certificates and other written statements (Actuarial Informationother than any forecasts and projections) relating to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service Borrower and its Subsidiaries furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished Lenders by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated therebyhereby, when considered in their totality together with the information set forth contained in the Borrower’s periodic most recent Form 10-K and in the Borrower’s reports filed as of any date of determination with the SEC under Securities and Exchange Commission (or any succeeding Governmental Authority) subsequent to the Securities Exchange Act filing of 1934its most recent Form 10-K, taken as amendeda whole and as modified or otherwise supplemented by information so provided, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not or omit and will not omitto state a material fact necessary in order to make the statements contained therein, when taken as a whole, to state any fact necessary to make not misleading at the statements therein, time made in the light of the circumstances under which they were when made. All forecasts and projections, if any, that have been or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, prepared by the Borrower represents only that such information was and made available to the Administrative Agent or any Lender in connection with this Agreement have been or will be prepared in good faith based upon assumptions and estimates believed by the Borrower to be reasonable at the time made and notes in light of the circumstances when made (it being understood that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some subject to significant uncertainties and contingencies, many of which are not within beyond the control Borrower’s control, and that no assurance can be given that the projections will be realized).
(s) Since the date hereof there has been no change to the charter or by-laws of the Borrower and actual results may vary from that materially adversely affects the projections and such variations may be material and, accordingly, rights of the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedLenders.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(ot) The Borrower has implemented implemented, and maintains in effect effect, policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with all Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, and to the knowledge of the Borrower, its directors and agents, are in compliance with all Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby or the transactions contemplated hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or Credit, use of proceeds thereof or other transaction contemplated by this Agreement will violate any Anti-Corruption Laws Law or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(qu) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectis not an EEA Financial Institution.
Appears in 1 contract
Representations and Warranties of the Borrower. The In order to induce the Lender to make the Loan, the Borrower represents makes the following representations and warrants as followswarranties to the Lender, each and all of which shall survive the execution and delivery of this Agreement:
(a) The Borrower is (i) a corporation duly organized, organized and validly existing in the Commonwealth of Puerto Rico and the Borrower does not conduct business in good standing under any other jurisdiction where the laws of the jurisdiction nature of its organization, and (ii) duly business or assets requires it to be so qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualificationbusiness, except where the failure to so qualify would not materially adversely affect have a Material Adverse Effect on the business or the assets of the Borrower. The Borrower has all requisite corporate power and authority to conduct its business, condition (financial to own its property and to execute, deliver and perform all of its obligations under this Agreement, the Note and each of the other Loan Documents to which it is or otherwise), operations or propertieswill be a party.
(b) The execution, delivery and performance Performance by the Borrower of each the Loan Document Documents to which it is, is or is to become, will be a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational corporate action of the Borrower and do not and will not (A) contravene (i) the organization documents and/or by-laws of the Borrower’s organizational documents, (iiB) law violate in any material respect any provision of any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, (C) constitute or result in a material breach of or constitute a material default under any indenture or loan or credit agreement or any other agreement, lease or instrument to which the Borrower and/or any its Subsidiaries is a party or by which its propertiesproperties may be bound or affected, or (iiiD) result in, or require, the creation or imposition of any contractual mortgage, deed of trust, pledge, Lien, security interest or legal restriction binding on other charge or affecting encumbrance of any nature (other than as required hereunder) upon or with respect to any of the properties now owned or hereafter acquired by the Borrower and/or its Subsidiaries. Neither the Borrower nor its Subsidiaries is in default under any such law, rule, regulation, order, writ; judgment, injunction, decree, determination or its propertiesaward, or in breach of any such indenture, agreement, lease or instrument, the violation or breach of which is reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other the Loan Document to which it is, is or is to become, will be a party, except or for the FERC Authorizationconsummation of the transactions contemplated hereby or thereby. The Borrower has all material licenses, which has been duly obtainedpermits, rights, variances and is in full force other Governmental Approvals that are necessary to perform its various obligations under the Loan Documents, to own and effectoperate its properties and assets and to conduct its business as currently conducted.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower is or will be a party when delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subject, however, except to any the extent enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar laws affecting creditor's rights generally the enforcement of creditors’ rights and remedies and to general by equitable principles of equity (regardless of whether enforceability enforcement is considered in a proceeding sought in equity or at law).
(e) The consolidated financial statements balance sheet of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, 1998 and the related consolidated financial statements of income and retained earnings of the Borrower and its Subsidiaries as of March for the period ended on December 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC1998, copies of each of which have been furnished to each Bankthe Lender, fairly present the consolidated financial condition of the Borrower and its Subsidiaries on a consolidated basis as at of such dates date and the consolidated results of the operations of the Borrower and its Subsidiaries on a consolidated basis for the periods period ended on such datesdate, all in accordance with GAAPGenerally Accepted Accounting Principles consistently applied, subject, in the case of and since such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023date, there has been no material adverse change Material Adverse Change in the financial such condition or operations of the Borroweroperations.
(f) Except as otherwise disclosed in the Disclosure Documentsaudited financial statements referred to in sub-section (e) of this Section 4.1, there is no pending or or, to the best of the Borrower's knowledge, threatened action or proceeding affecting the Borrower or any of and/or its Subsidiaries before any court, governmental agency or arbitrator that could which, (i) if adversely determined, is reasonably be expected likely to have a Material Adverse Effect. There has been no change in Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, the Note or any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effectother Loan Document or the consummation of the transactions contemplated hereby or thereby.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is and its other Subsidiaries are not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Extension of Credit the Advances will be used by the Borrower to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxmargin stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is Each Loan Party and each of its Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it owns or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualification, be licensed except where the failure to so qualify or be licensed would not materially adversely affect 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 businessproperties and to carry on its business as now conducted and as proposed to be conducted, condition (financial except, in the case of such licenses, permits and approvals, where a failure to obtain such licenses, permits or otherwise)approvals would not, operations either individually or propertiesin the aggregate, be reasonably likely to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower each Loan Party of each Loan Document to which it is, is or is to become, be a party, and the consummation of the transactions contemplated hereby, are within the Borrowersuch Loan Party’s corporate or organizational powers, have been duly authorized by all necessary corporate or organizational action action, and do not contravene not
(i) the Borrowercontravene such Loan Party’s organizational documentscharter or bylaws, (ii) law applicable to violate any law, rule, regulation (including, without limitation, Regulation X of the Borrower Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or its properties, award or (iii) conflict with or result in the breach of, or constitute a default or require any contractual payment to be made under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or legal restriction other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties, the Borrower conflict, breach, default or payment of which could be reasonably likely to have a Material Adverse Effect. No Loan Party or any of its propertiesSubsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could be reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and or performance by the Borrower any Loan Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is or is to become, be a party, or for the consummation of the transactions contemplated hereby, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for the FERC Authorizationauthorizations, approvals, actions, notices and filings listed on Schedule 4.01(c) hereto, all of which has have been duly obtained, taken, given or made and is are in full force and effect. Amendment No. 7 shall be or has been approved on the Closing Date.
(d) This Agreement has been, and the each other Loan Documents to which it isDocument when delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Loan Party thereto. This Agreement is, and upon execution and delivery thereof each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party party thereto, enforceable against the Borrower such Loan Party in accordance with its terms, subjectsubject to the effect of bankruptcy, however, to any applicable bankruptcyinsolvency, reorganization, rearrangement, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors generally and the enforcement effect of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equity.
(e) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or, to the knowledge of the Loan Parties, threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby.
(f) The consolidated financial statements Consolidated balance sheets of the Borrower and its Subsidiaries as of at December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP2002, and the consolidated financial related Consolidated statements of income and Consolidated statement of cash flows of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such dateyear then ended, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such dateaccompanied by an unqualified opinion of PricewaterhouseCoopers, as filed with the SECindependent public accountants, copies of each of which have been furnished to each BankLender, fairly present the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, subject (in the case of such financial statements for the fiscal quarter ended March 31, 2024, interim statements) to normal year-end adjustments and the absence of detailed footnotes. Except as disclosed in footnote disclosure and since September 30, 2003 (after giving effect to the Disclosure DocumentsBorrower’s financial statements filed with the Securities and Exchange Commission on December 12, since December 31, 20232003), there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse EffectChange.
(g) No event has occurred The Consolidated pro forma balance sheet of the Borrower and is continuing that constitutes an Event its Subsidiaries as at September 30, 2003, certified by the Chief Financial Officer of Default or that would constitute an Event the Borrower, copies of Default but for which have been furnished to each Lender, fairly presents the requirement that notice be given or time elapse or bothConsolidated pro forma financial condition of the Borrower and its Subsidiaries as at such date, giving effect to the transactions contemplated hereby, all in accordance with GAAP.
(h) Taken as a whole, 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 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 materially misleading.
(i) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(ij) The Borrower Neither any Loan Party nor any of its Subsidiaries is not an “investment company”, or an “affiliated person” of, or “promoter” or a company “controlledprincipal underwriter” by for, an “investment company” within the meaning of ”, as such terms are defined in the Investment Company Act of 1940, as amended. Neither any Loan Party nor any of its Subsidiaries is a “holding company”, or a “subsidiary company” of a “holding company”, or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company”, as such terms are defined in the Public Utility Holding Company Act of 1935, as amended. Neither the making of any Advances nor the application of the proceeds or repayment thereof by the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(jk) Each Loan Party is, together with its Subsidiaries, Solvent.
(i) Except as could not not, individually or in the aggregate, be reasonably be expected to have a Material Adverse Effect:
(A) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has resulted in or is reasonably expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, material liability of any Loan Party or is reasonably expected to occur, with respect to any ERISA Plan.Affiliate;
(kB) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to for each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the BanksLender Parties, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no material adverse change in such funding status status;
(C) Neither any Loan Party nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan;
(D) Neither any Loan Party nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA; and
(E) 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 maintained or contributed to by any Loan Party or any Subsidiary of any Loan Party that is not subject to United States law (a “Foreign Plan”):
(1) Any employer and employee contributions required by law or by the terms of any Foreign Government Scheme or Arrangement or any Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices;
(2) The fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and
(3) Each Foreign Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities.
(i) Except as otherwise set forth on Part I of Schedule 4.01(m) hereto, and except as could not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect, the operations and properties of each Loan Party and each of its Subsidiaries comply with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, and no circumstances exist that could be reasonably likely to (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties or (B) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(ii) Except as otherwise set forth on Part II of Schedule 4.01(m) hereto, (a) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or, to the best of the Parent’s or the Borrower’s knowledge, proposed for listing on the NPL or on the CERCLIS or any analogous state or local list or is adjacent to any such property; (b) except as could not reasonably be expected likely to result have, individually or in the aggregate, a Material Adverse Effect, there are no and never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the best of its knowledge, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries; (c) except as could not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect, there is no asbestos or asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and (d) Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries, except as could not reasonably be likely to have, individually or in the aggregate, a Material Adverse Effect.
(liii) Except as otherwise set forth on Part III of Schedule 4.01(m) hereto, and except as could not reasonably be expected likely to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could nothave, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in liability to any Loan Party or any of its Subsidiaries.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, organization and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the City Council Authorization and FERC Authorization, both of which has have been duly obtained, obtained and is are in full force and effect, and except that each such Extension of Credit must be made in accordance with the terms and conditions of the City Council Authorization.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2017 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 20242018, June 30, 2018 and September 30, 2018, and for the fiscal quarter quarters ended on such datedates, as set forth in the Borrower’s Quarterly Report Reports on Form 10-Q for the fiscal quarter quarters ended on such datedates, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter quarters ended March 31, 20242018, June 30, 2018, and September 30, 2018, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232017, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedPlan.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for the undertakings on the part of the Issuer herein contained:
(a) The Borrower is (i) a limited liability company duly organized, validly existing organized and in good standing under the laws of the jurisdiction of its organizationof, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which in, the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesState.
(b) The executionBorrower has the power to enter into this Agreement and to perform and observe the agreements and covenants on its part contained herein, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been proper corporate action has duly authorized by all necessary organizational action the execution and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its propertiesdelivery hereof.
(c) No consent, approval, authorization or approval other order of any regulatory body or administrative agency or other action by, and no notice to or filing with, any governmental authority or regulatory body is legally required for the due execution, delivery and performance Borrower’s participation in the transactions contemplated by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has such as (i) have been duly obtained, and is in full force and effectobtained or (ii) may be required under state securities laws.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon The execution and delivery thereof each other Loan Document will beof this Agreement by the Borrower do not, the legal, valid and binding obligation consummation of the Borrower enforceable against transactions contemplated hereby and fulfillment of the terms hereof, including, without limitation, will not, result in a breach of any of the material terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust or other material agreement or instrument to which the Borrower in accordance with is a party or by which it is now bound, or the Articles of Incorporation or Bylaws of the Borrower, or any present order, rule or regulation applicable to the Borrower of any court or of any regulatory body or administrative agency or other governmental body having jurisdiction over the Borrower or over any of its termsproperties, subject, however, or any statute of any jurisdiction applicable to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)Borrower.
(e) The consolidated financial statements There is not pending or, to the best knowledge of the Borrower, threatened any suit, action or proceeding against or affecting the Borrower before or by any court, arbitrator, administrative agency or other governmental authority that materially and adversely affects the validity, as to the Borrower, of any of the transactions contemplated by this Agreement or the ability of the Borrower and to perform its Subsidiaries obligations hereunder or as contemplated hereby.
(f) The Borrower does not rely on any warranty of December 31the Issuer, 2023, and for the year ended on such dateeither express or implied, as to the Project or the financing thereof or the adequacy of the loan made hereby for such financing or funding.
(g) Each of the representations of the Borrower set forth in the Borrower’s Annual Report on Form 10-K for Tax Matters Certificate (including, without limitation, those relating to the fiscal year ended on such date, as filed with use of the SEC, accompanied by an opinion proceeds of Deloitte & Touche LLP, the Bonds and the consolidated financial statements ownership, operation and use of the Borrower Project) is true, correct and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothcomplete.
(h) The Borrower Each element or unit of the Facilities, as described in Exhibit A hereto for which moneys are to be disbursed from the Project Fund is located in any one or more of the following Counties: Xxxxx, Fond du Lac and Sauk, and is not engaged in the business of extending credit for the purpose of purchasing “movable fixtures or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), equipment” (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth defined in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedTax Matters Certificate).
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Loan Agreement
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants to the Agent, the Guarantor and the Lender that as followsof the Closing Date and each Transfer Date:
(a) The Borrower is (i) duly organized, formed and is validly existing and as a limited liability company in good standing under the laws of the jurisdiction State of its organizationDelaware with full power and authority to execute and deliver this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and (ii) each other Loan Document to which it is a party and to perform the terms and provisions hereof and thereof; the Borrower is duly qualified to do business as a foreign organization business entity in each jurisdiction good standing, and has obtained all required licenses and approvals, if any, in all jurisdictions in which the nature ownership or lease of property or the conduct of its business requires such qualifications except those jurisdictions in which failure to be so qualified would not have a material adverse effect on the business or operations of the business conducted Borrower, the Collateral, the Secured Parties or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesConveyed Property.
(b) The execution, delivery and performance All necessary action has been taken by the Borrower of to authorize the Borrower, and the Borrower has full power and authority, to execute, deliver and perform its obligations under this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and each other Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization no consent or approval or other action by, and no notice to or filing with, of any governmental authority or regulatory body Person is required for the due execution, delivery and or performance by the Borrower of this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement (including obtaining any Extensions of Credit under this Agreement) or any and each other Loan Document to which it isis a party except for any consent or approval that has previously been obtained.
(c) This Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and each other Loan Document to which it is a party have been duly executed and delivered, and the execution and delivery of this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and each other Loan Document to which it is a party by the Borrower and its performance and compliance with the terms hereof and thereof will not violate its certificate of formation or the Borrower Operating Agreement or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract or any other material agreement or instrument (including, without limitation, the Loan Documents) to which the Borrower is a party or which may be applicable to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effectBorrower or any of its assets.
(d) This Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will beto which it is a party constitute valid, the legal, valid legal and binding obligation obligations of the Borrower Borrower, enforceable against the Borrower it in accordance with its their respective terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or and other similar laws affecting generally the enforcement of creditors’ rights and remedies generally and to general principles of equity (regardless of whether enforceability enforcement is considered sought in a proceeding Proceeding at law or in equity or at lawequity).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth is not in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLPviolation of, and the consolidated financial statements execution, delivery and performance of this Loan Agreement, the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Custodial Agreement and each other Loan Document to which it is a party by the Borrower and its Subsidiaries as will not constitute a violation with respect to, any order or decree of March 31any court or any order, 2024regulation or demand of any federal, and for the fiscal quarter ended on such dateState, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such datemunicipal or governmental agency, as filed which violation might have consequences that would have a Material Adverse Effect with the SEC, copies of each of which have been furnished respect to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed No Proceeding of any kind, including but not limited to litigation, arbitration, judicial or administrative, is pending or, to the Borrower’s knowledge, threatened in the Disclosure Documents, there is no pending writing against or threatened action or proceeding affecting contemplated by the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to which would have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected Effect with respect to result in such a Material Adverse Effectthe Borrower.
(g) No event has occurred Each of the representations and warranties of the Borrower set forth in the Management Agreement, the Servicing Agreement, the Contribution Agreement, the Borrower Operating Agreement and each other Loan Document to which it is continuing that constitutes an Event a party is, as of Default or that would constitute an Event the Closing Date, and shall be, as of Default but for each Transfer Date during the requirement that notice be given or time elapse or bothPrefunding Period, true and correct in all material respects.
(h) The Borrower is has not incurred debt or engaged in activities not related to the business of extending credit for transactions contemplated hereunder or under the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of Loan Documents except as permitted by the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) Operating Agreement or (d) will consist of or be represented by Xxxxxx Xxxxx.Section
(i) The Borrower is not insolvent and did not become insolvent as a result of the Grant pursuant to this Loan Agreement; the Borrower is not engaged and is not about to engage in any business or transaction for which any property remaining with the Borrower is unreasonably small capital or for which the remaining assets of the Borrower are unreasonably small in relation to the business of the Borrower or the transaction; the Borrower does not intend to incur, and does not believe or reasonably should not have believed that it would incur, debts beyond its ability to pay as they become due; and the Borrower has not made a transfer or incurred an obligation and does not intend to make such a transfer or incur such an obligation with actual intent to hinder, delay or defraud any entity to which the Borrower was or became, on or after the date that such transfer was made or such obligation was incurred, indebted.
(i) Each transfer of the Conveyed Property pursuant to the Contribution Agreement is an absolute transfer for legal purposes, (ii) the Grant of the Collateral by the Borrower pursuant to the terms of this Loan Agreement is a pledge for financial accounting purposes, and (iii) the Loan shall be treated by the Borrower as indebtedness for U.S. federal income tax purposes (unless otherwise required by Applicable Law). In this regard, (i) the financial statements of SEI and its consolidated subsidiaries shall show (A) that the Conveyed Property is owned by such consolidated group and (B) that the Loan is indebtedness of the consolidated group (and shall contain appropriate footnotes describing that the assets of the Borrower shall not be available to creditors of SEI, Sunnova Energy, Sunnova Intermediate Holdings, Sunnova Hestia Holdings, the Depositor, the Capital Markets Issuer, the Lender or any other Person other than creditors of the Borrower), and (ii) the U.S. federal income Tax Returns of SEI and its consolidated subsidiaries that are regarded entities for U.S. federal income tax purposes shall indicate that the Loan is indebtedness (unless otherwise required by Applicable Law).
(k) As of the Initial Cut-Off Date, the Aggregate Solar Loan Balance is at least $[***] and the Aggregate Closing Date Collateral Balance is at least $[***].
(l) The legal name of the Borrower is as set forth in this Loan Agreement; the Borrower has no trade names, fictitious names, assumed names or “doing business as” names.
(m) No item comprising the Collateral has been sold, transferred, assigned or pledged by the Borrower to any Person other than the Agent; immediately prior to the pledge of the Collateral to the Agent pursuant to this Loan Agreement, the Borrower was the sole owner thereof and had good and indefeasible title thereto, free of any Lien other than Permitted Liens.
(n) Upon the filing of the Perfection UCCs in accordance with applicable law, the Agent, for the benefit of the Secured Parties, shall have a first priority perfected Lien on the Conveyed Property and the other items comprising the Collateral and in the proceeds thereof, limited with respect to proceeds to the extent set forth in Section 9-315 of the UCC as in effect in the applicable jurisdiction, subject to Permitted Liens. All filings (including, without limitation, UCC filings) and other actions as are necessary in any jurisdiction to provide third parties with notice of and to document the transfer and assignment of the Collateral to the Borrower and to give the Agent a first priority perfected Lien on the Collateral (subject to Permitted Liens), including delivery of the Custodian Files to the Custodian, and the payment of any fees, have been made or, with respect to Termination Statements, shall be made within one Business Day of the Closing Date.
(o) None of the absolute transfers of the Conveyed Property by Sunnova Intermediate Holdings to Sunnova Hestia Holdings pursuant to the Contribution Agreement, the absolute transfers of the Conveyed Property by Sunnova Hestia Holdings to the Depositor pursuant to the Contribution Agreement, the absolute transfers of the Conveyed Property by the Depositor to the Capital Markets Issuer pursuant to the Contribution Agreement, the absolute transfers of the Conveyed Property by the Capital Markets Issuer to the Lender pursuant to the Contribution Agreement, the absolute transfers of the Conveyed Property by the Lender to the Borrower pursuant to the Contribution Agreement, or the Grant by the Borrower to the Agent pursuant to this Loan Agreement is subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(p) The Borrower is not, and after giving effect to the application of the proceeds of the Loan will not be, required to register as an “investment company” or a company “controlled” by an as such term is defined in the 1940 Act. In making this determination, the Borrower is relying primarily on the exclusions from the definition of “investment company” within the meaning contained in Section 3(c)(5)(A) and Section 3(c)(6) of the Investment Company Act of 19401940 Act, as amended.
(j) Except as could not reasonably although additional exclusions or exemptions may be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) available to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with Borrower at the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to Closing Date or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAPfuture.
(q) The Borrower is being structured so as not to constitute a “covered fund” for purposes of Section 619 of the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act of 2010, based on its Subsidiaries have filed all federal, state current interpretations.
(r) The principal place of business and other Tax returns the chief executive office of the Borrower are located in the State of Texas and reports required to be filedthe jurisdiction of organization of the Borrower is the State of Delaware, and there are no other such locations.
(s) Representations and warranties regarding the Lien and Custodian Files in each case, made as of the Closing Date and each Transfer Date:
(i) The Grant contained in the “Granting Clause” of this Loan Agreement creates a valid and continuing Lien on the Collateral in favor of the Agent for the benefit of the Secured Parties, which Lien is prior to all other Liens arising under the UCC (other than Permitted Liens), and is enforceable as such against creditors of the Borrower, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and to general principles of equity (regardless of whether enforcement is sought in a Proceeding at law or in equity).
(ii) The Borrower has taken all steps necessary to perfect its ownership interest in the Solar Loans.
(iii) The Customer Contracts related to the Solar Loans constitute either “accounts”, “chattel paper”, “electronic chattel paper”, “instruments” or “general intangibles” within the meaning of the applicable UCC. The PV Systems and XXXX Systems constitute “Equipment” within the meaning of the UCC.
(iv) The Borrower owns and has good and marketable title to the Collateral free and clear of any Lien, claim or encumbrance of any Person, other than Permitted Liens.
(v) The Borrower has caused or shall have paid caused, within ten days of the Closing Date, the filing of all federalappropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the Lien on the Collateral granted to the Agent hereunder.
(vi) The Borrower has received a Closing Date Certification on the Closing Date and a Transfer Date Certification on each Transfer Date from the Custodian which certifies that the Custodian is holding the Custodian Files that evidence the Solar Loans in the Electronic Vault for the Agent for the benefit of the Secured Parties.
(vii) Other than Permitted Liens, state the Borrower has not pledged, assigned, sold, granted a Lien on, or otherwise conveyed any portion of the Collateral. The Borrower has not authorized the filing of and is not aware of any financing statements against the Borrower that include a description of collateral covering any portion of the Collateral other Taxes, assessments, fees and other governmental charges levied than any financing statement relating to the security interest granted to the Agent hereunder or imposed upon them that have been terminated. The Borrower is not aware of any judgment or their properties, income or assets otherwise due and payabletax lien filings against the Borrower, except with respect to tax liens for amounts which have already been paid.
(aviii) Taxes Except as permitted or required by the Loan Documents no portion of any Customer Contract has any marks or notations indicating that that are being contested they have been pledged, assigned or otherwise conveyed to any Person other than the Agent, except for notations relating to Xxxxx released prior to the pledge of the Collateral to the Agent. The foregoing representations and warranties in good faith by appropriate proceedings diligently conducted Section 3.12(s)(i)-(viii) shall remain in full force and for which adequate reserves are being maintained effect and shall not be waived or amended until the Loan is paid in full or otherwise released or discharged except in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectthis Loan Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Sunnova Energy International Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is Each Loan Party (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, and (ii) is duly qualified to do business as a foreign organization in each every jurisdiction in which wherein the nature conduct of the its business conducted or the property owned, operated or leased by it requires ownership of its properties is such qualification, as to require such qualification (except where the failure to so qualify would not materially adversely affect have a Material Adverse Effect) and (iii) has all requisite corporate power and authority to own or lease and operate its businessproperties and to carry on its business as now conducted and to execute, condition (financial deliver and perform each of the Loan Documents to which it is or otherwise), operations or propertiesis to be a party and to consummate the transactions contemplated by the Loan Documents.
(b) The execution, delivery and performance by the Borrower each Loan Party of each Loan Document to which it is, is or is to become, be a party, and the consummation of the transactions contemplated by the Loan Documents, are within the Borrower’s organizational such Loan Party's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) the Borrower’s organizational documentscontravene such Loan Party's charter or bylaws, (ii) law applicable to the Borrower violate any law, any order of any court or its properties, governmental agency binding on such Loan Party or any contractual restriction binding on such Loan Party or (iii) except for the Liens created under the Collateral Documents, result in or require the creation or imposition of any contractual Lien upon or legal restriction binding on or affecting with respect to any of the Borrower or its propertiesproperties of such Loan Party.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, filing or performance by each Loan Party of any Loan Document to which it is or is to be a party, or for the Borrower consummation of this Agreement the transactions contemplated by the Loan Documents, (including obtaining any Extensions ii) the grant by each Loan Party of Credit the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under this Agreementthe Collateral Documents or (iv) the exercise by the Lender of its rights under the Loan Documents or any the remedies in respect of the Collateral pursuant to the Collateral Documents, other than the filing of the financing statements referred to in Section 3.01(f)(ii)(B), which financing statements shall have been duly filed within 3 days from the date hereof.
(d) The Note has been, and each other Loan Document to which it is, or any Loan Party is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party when delivered hereunder will have been or will be (as the case may be) been, duly executed and delivered by itthe Borrower or such Loan Party, and this Agreement as applicable. The Note is, and upon execution and delivery thereof each other Loan Document to which any Loan Party is a party when delivered hereunder will be, the legal, valid and binding obligation of the Borrower or such Loan Party, as applicable, enforceable against the Borrower or such Loan Party, as applicable, in accordance with its terms, subject, however, to any except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or other similar laws affecting generally the enforcement of creditors’ ' rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)generally.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31There is no action, 2023suit, and for the year ended on such dateinvestigation, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024litigation or proceeding affecting any Loan Party pending or, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations knowledge of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could (i) would be reasonably be expected likely to have a Material Adverse Effect. There has been no change in Effect or (ii) purports to affect the legality, validity or enforceability of any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse EffectLoan Document.
(gf) No event has occurred and Loan Party is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U), and no proceeds of any Extension of Credit an Advance will be used to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxmargin stock.
(ig) The Borrower is not an “investment company” or Security Agreement creates a company “controlled” by an “investment company” within valid and, upon the meaning filing of UCC-1 financing statements with the Secretary of State of Ohio, perfected first priority security interest in the Collateral, securing the payment of the Investment Company Act Secured Obligations (as defined in the Security Agreement), and all filings and other actions necessary or desirable to perfect and protect such security interest shall have been duly taken within 10 days from the date hereof. The Loan Parties are the legal and beneficial owners of 1940the Collateral free and clear of any Lien, as amendedexcept for the liens and security interests created under the Loan Documents.
(jh) Except as could not reasonably be expected to result Each Plan is in a Material Adverse Effect, substantial compliance with ERISA and no ERISA Termination Event has occurred, occurred or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, Plans is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliatemultiemployer plan, as applicable, defined in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.Section 4001(a)(3)
Appears in 1 contract
Samples: Credit Agreement (Medplus Inc /Oh/)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a corporation duly organized, validly existing and existing, in good standing standing, and authorized to transact business under the laws of the jurisdiction State of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesincorporation.
(b) The execution, delivery and performance by the Borrower of each Loan Document the Credit Documents to which it is, or is to become, a party, party (i) are within the Borrower’s organizational corporate powers, (ii) have been duly authorized by all necessary organizational action and corporate action, (iii) do not contravene (iA) the Borrower’s organizational documentscharter or by-laws, (ii) law applicable to as the Borrower or its propertiescase may be, or (iiiB) any contractual law, rule or regulation, or any material Contractual Obligation or legal restriction restriction, binding on or affecting the Borrower or its propertiesany Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of the Borrower or any Material Subsidiary under any Contractual Obligation binding on or affecting the Borrower or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Credit Document to which it is, or any of them is to become, a party, except for the FERC Authorization, which has such as (i) have been duly obtained, obtained or made and is that are in full force and effecteffect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) This Agreement and the other Loan Documents Each Credit Document to which it is, or the Borrower is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting generally the enforcement of creditors’ rights generally and remedies and subject to general principles of equity (equity, regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Referenced Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECFinancial Statements, copies of each of which have been made available or furnished to each BankLender, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates the date thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAPGAAP consistently applied.
(f) The Referenced Quarterly Financial Statements, subjectcopies of which have been made available or furnished to each Lender, in the case of such financial statements for the fiscal quarter ended March 31, 2024, fairly present (subject to year-end adjustments audit adjustments) the financial condition of the Borrower and its Subsidiaries as at the date thereof and the absence results of detailed footnotes. Except as disclosed the operations of the Borrower and its Subsidiaries for the period ended on such date, all in the Disclosure Documents, since accordance with GAAP consistently applied.
(g) Since December 31, 2023, 2021 there has been no material adverse change in the financial such condition or operations operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower.
(fh) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, proceeding or proceeding investigation affecting the Borrower or any of its Subsidiaries before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by the Borrower or any of its Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(i) The Borrower and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(j) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There .
(k) Schedule SB (Actuarial Information) to the 2021 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule SB there has been no adverse change in any matter disclosed in such filings that could funding status which may reasonably be expected to result in such have a Material Adverse Effect.
(gl) No event Neither the Borrower nor any ERISA Affiliate has occurred and incurred or is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be given or time elapse or bothexpected to have a Material Adverse Effect.
(hm) The Neither the Borrower is not engaged in nor any ERISA Affiliate has been notified by the business sponsor of extending credit for a Multiemployer Plan that such Multiemployer Plan has been terminated, within the purpose meaning of purchasing or carrying Margin StockTitle IV of ERISA, and no proceeds Multiemployer Plan is reasonably expected to be terminated, within the meaning of any Extension Title IV of Credit will ERISA, in either such case, that could reasonably be used expected to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxhave a Material Adverse Effect.
(in) The Borrower is not an “investment company” ”, or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(jo) Except as could not reasonably The Borrower has filed all federal, state and other material income tax returns required to be expected filed by it and has paid or caused to result be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in a Material Adverse Effect, no ERISA Termination Event good faith and by proper proceedings and in respect of which the Borrower has occurred, or is reasonably expected to occur, set aside adequate reserves for the payment thereof in accordance with respect to any ERISA PlanGAAP.
(kp) Schedule B The Borrower and its Subsidiaries are and have been in compliance with all laws (Actuarial Information) including, without limitation, all Environmental Laws), except to the most recent annual report (Form 5500 Series) with respect extent that any failure to each ERISA Planbe in compliance, copies of which have been filed with individually or in the Internal Revenue Service and furnished to the Banksaggregate, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could not reasonably be expected to result in a Material Adverse Effect.
(lq) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) No Subsidiary of the Borrower has not incurredis party to, and does not reasonably expect to incuror otherwise bound by, any withdrawal liability agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to the Borrower, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to the Borrower, other than prohibitions and restrictions permitted to exist under ERISA to any Multiemployer Plan Section 6.01(e).
(r) The information, exhibits and (ii) neither reports furnished by the Borrower nor or any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower Subsidiaries to the Administrative Agent, any LC Issuing Bank Agent or to any Lender pursuant to or in connection with the Loan Documents and negotiation of, or compliance with, the transactions contemplated therebyCredit Documents, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, do not contain any untrue statement material misstatement of a material fact and do not omit and will not omit, when taken as a whole, to state a material fact or any fact necessary to make the statements therein, contained therein not misleading in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(os) The Borrower has and its Subsidiaries have implemented and maintains maintain in effect policies and procedures reasonably designed to ensure compliance by the Borrower, Borrower and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, Borrower and its Subsidiaries and their respective officers and employees and, to the knowledge of the BorrowerBorrower and its Subsidiaries, its respective directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the BorrowerBorrower or its Subsidiaries or, any Subsidiary thereof to the knowledge of the Borrower or its Subsidiaries, any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that of its Subsidiaries which agent will act in any capacity in connection with or benefit from the credit term loan facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or Borrowing, use of proceeds thereof hereunder or other transaction contemplated by this Agreement Transactions will violate Anti-Corruption Laws or applicable Sanctions.
(pt) All payments due from The Borrower is not an Affected Financial Institution.
(u) The information included in each Beneficial Ownership Certification is true and correct in all respects.
(v) None of the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on Subsidiaries is an entity deemed to hold “plan assets” (within the financial statements meaning of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filedPlan Asset Regulations), and have paid all federalneither the execution, state and other Taxesdelivery nor performance of the transactions hereunder, assessmentsincluding the making of any Loan hereunder, fees and other governmental charges levied will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to Section 4975 of the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectCode.
Appears in 1 contract
Samples: Credit Agreement (Nisource Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower Each Loan Party that is a corporation (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it owns or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualification, be licensed except where the failure to so qualify would or be licensed is not materially adversely affect reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate power and authority to own or lease and operate its business, condition (financial or otherwise), operations or propertiesproperties and to carry on its business as now conducted and as proposed to be conducted.
(b) Each Loan Party that is a partnership or a limited liability company (i) is a partnership or a limited liability company duly formed and validly existing under the laws of the State of its formation, (ii) is duly qualified 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 is not reasonably likely to have a Material Adverse Effect and (iii) has all requisite partnership or a limited liability company power and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by the Borrower of each Loan Party of this Credit Agreement, the Notes, each other Loan Document and each related document to which it is, is or is to become, be a party, and the consummation of the transactions contemplated herein and therein, are within the Borrower’s organizational such Loan Party's corporate, partnership or limited liability company powers, have been duly authorized by all necessary organizational action and corporate, partnership or limited liability company action, and, to each such Loan Party's knowledge, do not contravene (i) the Borrower’s contravene such Loan Party's organizational documents, (ii) law applicable violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, except where such violation is not reasonably likely to the Borrower or its propertieshave a Material Adverse Effect except as set forth on Schedule II hereof, or (iii) except as set forth on Schedule II hereof, conflict with or result in the breach of, or constitute a default under, any contractual contract, loan agreement, indenture, mortgage, deed of trust, lease or legal restriction other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties, except where such conflict, breach or default is not reasonably likely to have a Material Adverse Effect or (iv) except for the Borrower Liens created by the Collateral 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 propertiesSubsidiaries.
(cd) No Other than as set forth on Schedule III hereof, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or , the Notes, any other Loan Document or any related document to which it is, is or is to become, be a party, except or for the FERC Authorizationconsummation of the transactions contemplated hereby, which has been duly obtained(ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, and is (iii) the perfection or maintenance of the Liens created by the Collateral Documents or (iv) the exercise by the Lender of its rights under the Loan Documents or the remedies in full force and effectrespect of the Collateral pursuant to the Collateral Documents.
(de) This Credit Agreement has been, and the Notes, each other Loan Documents to which it isDocument and each related document when delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Loan Party thereto. This Credit Agreement is, and upon execution and delivery thereof the Notes, each other Loan Document and each related document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party thereto, enforceable against the Borrower such Loan Party in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ef) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of March 31, 20242002, and the related Consolidated statement of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended on such dateyear then ended, and the Consolidated balance sheet of the Borrower and its Subsidiaries as set forth in at March 31, 2002, and the Borrower’s Quarterly Report on Form 10-Q related Consolidated statement of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended on such datenine months then ended, as filed with duly certified by the SECChairman of the Board of Borrower or any other officer of Borrower, copies of each of which have been furnished to each Bankthe Lender, fairly present present, subject, in the consolidated case of said balance sheet as at March 31, 2002, and said statement of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended generally accepted accounting principles applied on a consistent basis. Since March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232002, there has been no material adverse change in the financial condition or operations of the BorrowerMaterial Adverse Change.
(fg) Except All financial statements delivered by any Loan Party to the Lender, are true, correct and complete in all material respects, fairly represent such Loan Party's financial condition as disclosed of the date hereof and thereof, and no information has been omitted that would make the information previously furnished misleading or incorrect in the Disclosure Documentsany material respect.
(h) To such Loan Party's knowledge, there is no pending or threatened action action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries Loan Party not covered by insurance (subject to reasonable deductibles), including any Environmental Action, pending before any court, governmental agency or arbitrator that could (i) would be reasonably be expected likely to have a Material Adverse Effect. There Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of this Credit Agreement, the Notes, any other Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status or financial effect on any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% Loan Party of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxDisclosed Litigation from that described on Schedule IV hereof.
(i) The Borrower is not Except as set forth on Schedule V(a) hereof to such Loan Party's knowledge, the operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all Environmental Laws, all necessary Environmental Permits have been obtained and are in effect for the operations and properties of each Loan Party and its Subsidiaries, each Loan Party and its Subsidiaries are in compliance in all material respects with all such Environmental Permits, and, no circumstances exist that would be reasonably likely to (i) form the basis of an “investment company” Environmental Action against any Loan Party or any of its Subsidiaries or any properties described in the Mortgages or the 59th Street Property that could have a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940Material Adverse Effect ox (xx) xxxxe any such property to be subject to any restrictions on ownership, as amendedoccupancy, use or transferability under any Environmental Law.
(j) Except as could set forth in the environmental reports heretofore delivered to the Lender as set forth on Schedule V(b) hereof, none of the operations and properties of each Loan Party is listed or, to the knowledge of any Loan Party, proposed for listing on the National Priorities List under CERCLA or on the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the Environmental Protection Agency or any analogous state list of sites requiring investigation or cleanup or is adjacent to any such property. Except as would not reasonably be expected to result in have a Material Adverse Effect, no ERISA Termination Event underground storage tanks, as such term is defined in 42 U.S.C.Section 6991, are located on any property in violation of applicable Environmental Laws. Except as set forth on the environmental reports heretofore provided to the Lender, the Borrower has occurred, or is reasonably expected to occur, with respect to no knowledge of any ERISA Planunderground storage tank located on any Property adjoining any Property.
(k) Schedule B Each Loan Party and each of its Subsidiaries has filed or has caused to be filed all income tax returns (Actuarial InformationFederal, state and local) required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties. The Borrower is not aware of any material unasserted claims for prior taxes against it for which adequate reserves satisfactory to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which Lender have not been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effectestablished.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurredEach Mortgagor, and does not reasonably expect each of 731 Commercial LLC and 731 Residential LLC has good, marketable and insurable fee simple title to incurthe real property described in the Mortgage executed and delivered by such Mortgagor and 59th Street Property, any withdrawal liability under ERISA to any Multiemployer Plan as applicable, free and (ii) neither clear of all Liens, xxxxx xxxn those disclosed on such Schedule and Liens created or permitted by the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedLoan Documents.
(m) The reportsExcept as set forth on Schedule VI hereof, financial statements and other written information furnished by no Loan Party is in default in the performance, observance or on behalf fulfillment of any of the Borrower to the Administrative Agentobligations, any LC Issuing Bank covenants or any Lender pursuant to conditions contained herein or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect agreement or instrument to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether which it is a party or not such projections by which it or forward looking statements are in fact achieved will depend upon future events some any of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedits properties is bound.
(n) As of the date deliveredhereof, there has been no Material Adverse Change since the information included in date of the Beneficial Ownership Certification, if any, is true and correct in all respectsmost recent financial statements provided by the Borrower or such Loan Party to the Lender.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the BorrowerNo Loan Document or other document, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, certificate or statement furnished to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof Lender by or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent on behalf of the Borrower or any Subsidiary that will act other Loan Party contains any untrue statement of a material fact or omits to state a material fact necessary in any capacity in connection with or benefit from order to make the credit facility established hereby, statements contained herein and therein not misleading. It is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated specifically understood by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages that all such statements, representations and employee and retiree health and welfare insurance and other benefits warranties shall be deemed to have been paid or properly accrued on relied upon by the financial statements of Lender as an inducement to make the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) Loan to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectBorrower.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, qualification necessary (except where the failure to so qualify would not materially adversely affect its business, condition (financial or otherwiseconstitute a Material Adverse Change), operations or properties.
(b) The execution, delivery and performance by the Borrower of each this Agreement and the other Loan Document Documents to which it is, is or is to become, will be a party, and the receipt by the Borrower of the proceeds of Extensions of Credit on the date of any Extension of Credit, are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not and will not contravene (i) the Borrower’s organizational documentscharter or by laws, (ii) law applicable to the Borrower or its propertiesany law, or (iii) any legal or contractual or legal restriction binding on or affecting the Borrower Borrower; and such execution, delivery and performance do not and will not result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for in connection with the due execution, delivery and or performance by the Borrower of this Agreement any Loan Document, other than (including obtaining any Extensions of Credit under this Agreementi) or any other Loan Document to which it is, or is to become, a party, except for the FERC AuthorizationSEC Order, which has been duly obtained, release is final and is in full force and effecteffect and not subject to appeal, rehearing, review or reconsideration and (ii) with respect to the Borrower’s obtaining any Extension of Credit after December 31, 2007, the Supplemental Order.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subjectsubject to the qualifications, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general principles application affecting rights and remedies of equity (regardless creditors and that the remedy of whether enforceability specific performance or of injunctive relief is considered in a proceeding in equity or at law)subject to the discretion of the court before which any proceedings therefor may be brought.
(e) Since December 31, 2004, there has been no Material Adverse Change.
(f) The audited consolidated financial statements balance sheets of the Borrower and its Subsidiaries as of at December 31, 20232004, and for the year ended on such daterelated audited consolidated, as set forth in and, with respect to the Borrower’s Annual Report on Form 10-K , consolidating, statements of income of the Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLPthen ended, and the unaudited consolidated financial statements balance sheets of the Borrower and its Subsidiaries as of at March 31, 2024, 2005 and the related unaudited consolidated statements of income for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10three-Q for the fiscal quarter ended on such date, as filed with the SECmonth period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the three-month period ended March 31, 2005, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance accordance, in all material respects, with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(fg) Except as disclosed in the Disclosure DocumentsBorrower’s Report on Form 10-K for the year ended December 31, 2004 and Report on Form 10-Q for the period ended March 31, 2005, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries or properties before any court, governmental agency or arbitrator arbitrator, that could might reasonably be expected to have constitute a Material Adverse Effect. There has Change, and since December 31, 2004 there have been no change material adverse developments in any matter action or proceeding so disclosed in such filings that could might reasonably be expected to result in such constitute a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothChange.
(h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan of the Borrower or any of its ERISA Affiliates which would result in a material liability to the Borrower. No “prohibited transaction” has occurred with respect to any Plan of the Borrower that is reasonably expected to result in a material liability to the Borrower. Neither the Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan.
(i) The Borrower has filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or, to the extent the Borrower is not contesting in good faith by appropriate proceedings an assertion of liability based on such returns and has provided adequate reserves for payment thereof in accordance with GAAP.
(j) Neither the Borrower nor any Subsidiary of the Borrower is engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds making of each Extension of Credit, not more Margin Stock will constitute less than 25% of the value 25 percent of the assets (as determined by any reasonable method) of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxon a consolidated basis.
(ik) The Borrower is not an “investment company” or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of Neither the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from Affiliate of the credit facility established hereby, Borrower (i) is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
, (pii) All payments due from the Borrower or any has more than 15% of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliateassets in Sanctioned Countries, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (biii) to the extent that the failure to do so could notderives more than 15% of its operating income from investments in, individually or in the aggregatetransactions with, reasonably be expected to have a Material Adverse Effect.Sanctioned Persons or Sanctioned
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, qualification necessary (except where the failure to so qualify would not materially adversely have a material adverse affect its on the business, condition (financial or otherwise)condition, operations, results of operations or propertiesprospects of the Borrower and its Subsidiaries, taken as a whole).
(b) The execution, delivery and performance by the Borrower of each this Agreement, the Notes and the other Loan Document Documents to which it is, is or is to become, will be a party, party are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not and will not contravene (i) the Borrower’s organizational documents's charter or by-laws, (ii) law applicable to the Borrower or its propertieslaw, or (iii) any legal or contractual or legal restriction binding on or affecting the Borrower Borrower; and such execution, delivery and performance do not and will not result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for in connection with the due execution, delivery and or performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effectDocument.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subjectsubject to the qualifications, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general principles application affecting rights and remedies of equity (regardless creditors and that the remedy of whether enforceability specific performance or of injunctive relief is considered in a proceeding in equity or at law)subject to the discretion of the court before which any proceedings therefor may be brought.
(e) Since December 31, 1995, there has been no material adverse change in the business, financial condition, operations, results of operations or prospects of the Borrower and its Subsidiaries, taken as a whole, or in the Borrower's ability to perform its obligations under this Agreement or any other Loan Document to which it is or will be a party.
(f) The pro forma unaudited consolidated financial statements and consolidating balance sheets of the Borrower and its Subsidiaries as of at December 31, 20231995, and for the year ended on such date, as set forth in related pro forma unaudited consolidated and consolidating statements of income of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLPthen ended, and the unaudited consolidated financial statements and consolidating balance sheets of the Borrower and its Subsidiaries as at September 30, 1996 and the related unaudited consolidated and consolidating statements of March 31, 2024, and income for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10nine-Q for the fiscal quarter ended on such date, as filed with the SECmonth period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the nine months ended September 30, 1996, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subjectaccordance, in the case of such financial statements for the fiscal quarter ended March 31all material respects, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrowerwith generally accepted accounting principles consistently applied.
(fg) Except as disclosed in the Disclosure DocumentsParent's Report on Form 10-K for the year ended December 31, 1995 and Report on Form 10-Q for the period ended September 30, 1996, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries or properties before any court, governmental agency or arbitrator arbitrator, that could might reasonably be expected to materially adversely affect (i) the business, financial condition, results of operations or prospects of the Borrower and its Subsidiaries, taken as a whole, or (ii) the ability of the Borrower to perform its obligations under this Agreement or any other Loan Document to which the Borrower or the Parent is or is to be a party; and since September 30, 1996 there have a Material Adverse Effect. There has been no change material adverse developments in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default action or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothproceeding so disclosed.
(h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan of the Borrower or any of its ERISA Affiliates which would result in a material liability to the Borrower. Since the date of the most recent Schedule B (Actuarial Information) to the annual report of Plans maintained by the Borrower (Form 5500 Series), if any, there has been no material adverse change in the funding status of the Plans referred to therein and no "prohibited transaction" has occurred with respect thereto which is reasonably expected to result in a material liability to the Borrower. Neither the Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan.
(i) The Support Agreement is in full force and effect without having been amended, modified, waived or terminated in any manner, except in each case in accordance with the terms thereof.
(j) The Borrower has filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or, to the extent the Borrower is not engaged contesting in the business good faith an assertion of extending credit liability based on such returns, has provided adequate reserves for the purpose payment thereof in accordance with generally accepted accounting principles.
(k) Following application of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of CreditAdvance, not more than 25% 25 percent of the value of the assets of the Borrower and its Subsidiaries subject to on a consolidated basis will be margin stock (within the restrictions meaning of Section 5.02(aRegulation U issued by the Board of Governors of the Federal Reserve System), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(il) The Borrower is not an “"investment company” " or a company “"controlled” " by an “"investment company” ", within the meaning of the Investment Company Act of 1940, as amended.
(jm) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies As of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statementshereof, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or is not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not a "holding company" within the control meaning of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedPUHCA.
(n) As of From and after the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctionsupon which, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in at all material respects. None of (a) the Borrowertimes during which, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from shall be a "public-utility company" within the credit facility established herebymeaning of PUHCA, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any will be a "holding company" within the meaning of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on PUHCA, but the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to will be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payableexempt from the provisions of that Act, except (aSection 9(a)(2) Taxes that that are being contested in good faith thereof, by appropriate proceedings diligently conducted virtue of having filed with the Securities and for which adequate reserves are being maintained in accordance with GAAP or (b) to Exchange Commission a Statement by Holding Company Claiming Exemption Under Rule U-2 from the extent that Provisions of the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectPublic Utility Holding Company Act of 1935 on Form U-3A-2.
Appears in 1 contract
Samples: Credit Agreement (Ies Utilities Inc)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Each of the Borrower and its Subsidiaries is (i) an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualificationqualification necessary, except where such failure to so qualify would not materially adversely affect result in a Material Adverse Change. Each of the Borrower and its business, condition Subsidiaries has all requisite corporate (financial or otherwise), operations other applicable) powers and authority to own or propertieslease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower and, where applicable, each Subsidiary of this Agreement, each Loan Document to which it is, or is to become, a party, party are within the Borrower’s organizational or Subsidiary’s corporate (or other applicable) powers, have been duly authorized by all necessary organizational action and corporate (or other applicable) action, do not contravene (i) the Borrower’s organizational documentsor Subsidiary’s certificate of incorporation (or other applicable formation document or operating agreement), (ii) law any law, rule or regulation applicable to the Borrower or its properties, such Subsidiary or (iii) any contractual or legal restriction binding on or affecting the Borrower or such Subsidiary, and will not result in or require the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower or its propertiesSubsidiaries, except as provided in this Agreement and any other the Loan Document.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Action is required for the due execution, execution or delivery and performance by the Borrower or its Subsidiaries of this Agreement (including obtaining any Extensions of Credit under this Agreement) or , any other Loan Document to which it is, is a party or is to become, a party, except for the FERC Authorizationperformance by the Borrower or its Subsidiaries of its obligations under this Agreement, any other Loan Document to which has it is a party other than those which have previously been duly obtained, and is are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, threatened appeal or other proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or appeal with respect thereto have expired.
(d) This Agreement and the other each Loan Documents Document to which it is, the Borrower or any Subsidiary is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower or Subsidiary party thereto, enforceable against the Borrower or applicable Subsidiary in accordance with its termsterms subject to the effect of bankruptcy, subject, however, to any applicable bankruptcyinsolvency, reorganization, rearrangementfraudulent conveyance, moratorium or and other similar laws of general application affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)creditors generally.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or or, to the Borrower’s knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have has a reasonable possibility of resulting in a Material Adverse EffectChange.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2006, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, and the unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at September 30, 2007, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the six (6) months then ended, copies of which have been furnished to the Administrative Agent and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied, subject, solely in the case of unaudited consolidated balance sheets, to normal year end adjustments. There Since December 31, 2006, there has been no Material Adverse Change, or material adverse change in any matter disclosed in the facts and information regarding such filings that could reasonably be expected entities as represented to result in such a Material Adverse Effectthe Closing Date.
(g) No event has occurred The issuance of, and is continuing that constitutes an Event the existence of, the Letter of Default or that would constitute an Event Credit and the use of Default but for the requirement that notice be given or time elapse or bothproceeds thereof will comply with all provisions of applicable law and regulation in all material respects.
(h) The Neither the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of nor any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Subsidiary of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(i) Intentionally Deleted.
(j) Except as Neither the Borrower nor its Subsidiaries is engaged in the business of extending credit for the purpose of buying or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any drawing on the Letter of Credit will be used to buy or carry any margin stock or to extend credit to others for the purpose of buying or carrying any margin stock.
(k) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan which reasonably could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Change. Since the actuarial valuation date specified in the most recent Schedule B (Actuarial Information) to the most recent annual report of Plans maintained by the Borrower (Form 5500 Series), if any, (i) with respect to each ERISA Plan, copies of which have there has been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents no Material Adverse Change in the funding status of such the Plans referred to therein and (ii) no “prohibited transaction” has occurred with respect thereto. Neither the Borrower nor any of itsrespective ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan.
(l) Except as set forth in the Disclosure Documents, the Borrower and its Subsidiaries are in compliance in all material respects with all applicable Federal, state and local statutes, rules, regulations, orders and other provisions of law relating to Hazardous Materials, air emissions, water discharge, noise emission and liquid disposal, and since other environmental, health and safety matters, other than those the date non-compliance with which would not result in a Material Adverse Change (taking into consideration all fines, penalties and sanctions that may be imposed because of such Schedule B there non-compliance) or on the ability of the Borrower to perform its obligations under this Agreement or any other Loan Document to which the Borrower is a party. Except as set forth in the Disclosure Documents, neither the Borrower nor any of its respective Subsidiaries has received from any Governmental Authority any notice of any material violation of any such statute, rule, regulation, order or provision.
(m) The Borrower and its Subsidiaries have filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, except to the extent that the Borrower or any such Subsidiary is diligently contesting any such taxes in good faith and by appropriate proceedings, and for which adequate reserves for payment thereof have been no change in established.
(n) No event has occurred or is continuing which constitutes a Default or an Event of Default, or which constitutes, or which with the passage of time or giving of notice or both would constitute, a default or event of default by the Borrower or Subsidiary thereof under any material agreement or contract, judgment, decree or order by which the Borrower or any of its respective properties may be bound or which would require the Borrower or Subsidiary thereof to make any payment thereunder prior to the scheduled maturity date therefore, where such funding status that default could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respectsChange.
(o) The As of the Closing Date, the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, each of its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge will be Solvent.
(p) The capitalization of the Borrower, its directors Borrower and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any each Significant Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the BorrowerBorrower consists of the Capital Stock, authorized, issued and outstanding, of such classes and series, with or without par value, described on Schedule II hereto. All such outstanding Capital Stock has been duly authorized and validly issued and are fully paid and nonassessable. Except as set forth in the Disclosure Documents, there are no outstanding warrants, subscriptions, options, securities, instruments or other rights of any director type or agent nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or permit the issuance of, Capital Stock of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAPare otherwise exercisable by any Person.
(q) The Borrower and each Subsidiary of the Borrower has good and marketable title to all assets and other property purported to be owned by it.
(r) None of the properties or assets of the Borrower is subject to any Lien, except Permitted Liens.
(s) All written information, reports and other papers and data produced by or on behalf of the Borrower and furnished to the Administrative Agent and the Lenders were, at the time the same were so furnished, complete and correct in all material respects. No document furnished or written statement made to the Administrative Agent or the Lenders by the Borrower in connection with the negotiation, preparation or execution of this Agreement or any other Loan Documents contains or will contain any untrue statement of a fact material to the creditworthiness of the Borrower or its Subsidiaries have filed all federal, or omits or will omit to state and other Tax returns and reports required a fact necessary in order to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to make the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectstatements contained therein not misleading.
Appears in 1 contract
Samples: Letter of Credit Reimbursement Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, qualification necessary (except where the failure to so qualify would not materially adversely affect its business, condition (financial or otherwiseconstitute a Material Adverse Change), operations or properties.
(b) The execution, delivery and performance by the Borrower of each this Agreement and the other Loan Document Documents to which it is, is or is to become, will be a party, and the borrowing by the Borrower of the Advances on the date of any Borrowing, are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not and will not contravene (i) the Borrower’s organizational documents's charter or by-laws, (ii) law applicable to the Borrower or its propertiesany law, or (iii) any legal or contractual or legal restriction binding on or affecting the Borrower (including, without limitation, the PSC Order); and such execution, delivery and performance do not and will not result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for in connection with the due execution, delivery and or performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or the Borrower is to become, a party, except for the FERC Authorization, following (which has been duly obtained, filed or obtained and is final and in full force and effect): the PSC Order.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subjectsubject to the qualifications, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general principles application affecting rights and remedies of equity (regardless creditors and that the remedy of whether enforceability specific performance or of injunctive relief is considered in a proceeding in equity or at law)subject to the discretion of the court before which any proceedings therefor may be brought.
(e) Since December 31, 2001, there has been no Material Adverse Change.
(f) The audited consolidated financial statements balance sheets of the Borrower and its Subsidiaries as of at December 31, 20232001, and for the year ended on such date, as set forth in related audited consolidated statements of income of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLPthen ended, and the unaudited consolidated financial statements balance sheets of the Borrower and its Subsidiaries as of March 31at June 30, 20242002, and the related unaudited consolidated statements of income for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10six-Q for the fiscal quarter ended on such date, as filed with the SECmonth period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the six months ended June 30, 2002, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance accordance, in all material respects, with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(fg) Except as disclosed in the Disclosure DocumentsParent's Report on Form 10-K for the year ended December 31, 2001 and Report on Form 10-Q for the period ended June 30, 2002, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries or properties before any court, governmental agency or arbitrator arbitrator, that could might reasonably be expected to have constitute a Material Adverse Effect. There has Change; and since December 31, 2001 there have been no change material adverse developments in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default action or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothproceeding so disclosed.
(h) The Borrower No ERISA Event has occurred or is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of reasonably expected to occur with respect to any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Plan of the Borrower and or any of its Subsidiaries subject ERISA Affiliates which would result in a material liability to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning Borrower. No "prohibited transaction" has occurred with respect to any Plan of the Investment Company Act of 1940, as amended.
(j) Except as could not Borrower that is reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) material liability to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither Borrower. Neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower nor reasonably expects to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in incur any material respect; provided that, with respect withdrawal liability under ERISA to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedany Multiemployer Plan.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) 1. The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) 2. The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) 3. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) 4. This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) 5. The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2020 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, 2021 and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 20242021, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232020, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) 6. Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) 7. No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) 8. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) 9. The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) 10. Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) 11. Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) 12. Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) 13. The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) 14. As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) 15. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) 16. All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) 17. The Borrower and its Subsidiaries have has filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them it or their its properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is and each of its Subsidiaries (i) is a corporation or a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationformation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation or limited liability company in each other jurisdiction in which it owns or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualification, be licensed except where the failure to so qualify or be licensed would not materially adversely affect be reasonably likely to have a Material Adverse Effect and (iii) has all requisite entity power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its businessproperties and to carry on its business as now conducted and as proposed to be conducted and to execute, condition deliver and perform its obligations under the Loan Documents to which it is a party. 79 SDI – Credit Agreement
(financial or otherwise), operations or propertiesb) [Reserved].
(bc) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) contravene the Borrower’s organizational documentscharter or bylaws, (ii) law applicable to violate any law, rule, regulation (including, without limitation, Regulation X of the Borrower Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or its properties, award or (iii) conflict with or result in the breach of, or the creation of (or the requirement to create) any contractual Lien under or legal restriction constitute a default or require any payment to be made under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting the Borrower Borrower, any of its Subsidiaries or its any of their properties.
(cd) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and delivery, recordation, filing or performance by the Borrower of this any Loan Document.
(e) This Agreement (including obtaining any Extensions of Credit under this Agreement) or any has been, and each other Loan Document to which it iswhen delivered hereunder will have been, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this the Borrower. This Agreement is, and upon execution and delivery thereof each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ef) The consolidated financial statements of There is no action, suit, investigation, litigation or proceeding affecting the Borrower and or any of its Subsidiaries as Subsidiaries, including any Environmental Action, pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of December 31, 2023any Loan Document, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the status, or financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting effect on the Borrower or any of its Subsidiaries before any courtSubsidiaries, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (cDisclosed Litigation from that described on Schedule 4.01(f) or (d) will consist of or be represented by Xxxxxx Xxxxxhereto.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, and (ii) duly is qualified to do business as a foreign organization and is in good standing in each jurisdiction in which the nature of failure so to qualify or be in good standing would result in a material adverse effect on the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise)) of the Borrower, operations or propertiesand has all requisite power and authority to own its assets and carry on its business and to execute, deliver and perform its obligations hereunder and under the Related Documents to which it is a party.
(b) The execution, delivery delivery, and performance by the Borrower of this Agreement and each Loan Related Document to which it is, or is to become, a party, party (i) are within the Borrower’s organizational its powers, (ii) have been duly authorized by all necessary organizational action and action, (iii) do not contravene (i) the Borrower’s organizational documents, (ii) any law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower Borrower, and (iv) do not result in or require the creation of any lien, security interest, or other charge or encumbrance (except as provided in or contemplated by this Agreement or any of the Related Documents) upon or with respect to any of its properties.
(c) No authorization or approval consent, authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery delivery, and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan and each Related Document to which it is, or is to become, a party, except for the FERC Authorization, party other than that which has been duly obtained, and is in full force and effectobtained or will be obtained when required.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Related Document to which the Borrower is a party when delivered hereunder will be, the legal, valid valid, and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, except to any the extent that such enforcement may be limited by applicable bankruptcy, reorganizationinsolvency, rearrangement, moratorium or and other similar laws affecting generally creditors' rights generally, and by the enforcement application of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equitable principles.
(e) The consolidated financial statements There is no pending or threatened action, investigation, or proceeding before any court, governmental agency, or arbitrator against or affecting the Borrower which may materially adversely affect the ability of the Borrower to perform its obligations hereunder or under any Related Document to which it is a party.
(f) The pledge and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, assignment pursuant to this Agreement and the consolidated financial statements Related Documents of the Borrower Collateral and its Subsidiaries as any and all amounts on deposit from time to time in any accounts which are part of March 31the Collateral, 2024, and for create a valid binding first priority security interest therein securing the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECObligations purported to be secured thereby.
(g) All financial statements, copies of each of which have heretofore been furnished to each the Bank, are complete and correct and present fairly present in accordance with generally accepted accounting principles, the consolidated financial condition of the Borrower Borrower, and its Subsidiaries as at such dates and since the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case date of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effectthe Collateral.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (American Xtal Technology)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Each of the Borrower and its Significant Subsidiaries is (i) a corporation duly organized, organized and validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, qualification necessary (except where the failure to so qualify would not materially adversely affect its business, condition (financial or otherwiseconstitute a Material Adverse Change), operations or properties.
(b) The execution, delivery and performance by the Borrower of each this Agreement and the other Loan Document Documents to which it is, is or is to become, will be a party, and the receipt by the Borrower of the proceeds of Extensions of Credit on the date of any Extension of Credit, are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not and will not contravene (i) the Borrower’s organizational documentscharter or by-laws, (ii) law applicable to the Borrower or its propertiesany Requirement of Law, or (iii) any legal or contractual or legal restriction binding on or affecting the Borrower Borrower; and such execution, delivery and performance do not and will not result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for in connection with the due execution, delivery and or performance by the Borrower of this Agreement any Loan Document, other than (including obtaining any Extensions of Credit under this Agreementi) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, Order which has been duly obtained, release and order is final and in full force and effecteffect and not subject to appeal rehearing, review or reconsideration and (ii) with respect to the Borrower’s obtaining any Extension of Credit after each Trigger Date, a Supplemental Order.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subjectsubject to the qualifications, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general principles application affecting rights and remedies of equity (regardless creditors and that the remedy of whether enforceability specific performance or of injunctive relief is considered in a proceeding in equity or at law)subject to the discretion of the court before which any proceedings therefor may be brought.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of Since December 31, 20232010, and for the year ended on such date, except as set forth disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March December 31, 2024, 2010 and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the period ended September 30, 2011 (but excluding any risk factors, forward-looking disclosures and any other disclosures that are cautionary, predictive or forward-looking in nature), there has been no event or circumstance that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Change.
(f) The audited consolidated balance sheets of the Borrower and its Subsidiaries as at December 31, 2010, and the related audited consolidated statements of income of the Borrower and its Subsidiaries for the fiscal quarter ended on such dateyear then ended, and the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as filed with at September 30, 2011 and the SECrelated unaudited consolidated statements of income for the nine-month period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the nine-month period ended September 30, 2011, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance accordance, in all material respects, with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(fg) Except as disclosed in the Disclosure DocumentsParent’s Report on Form 10-K for the year ended December 31, 2010 and Report on Form 10-Q for the period ended September 30, 2011 (but excluding any risk factors, forward-looking disclosures and any other disclosures that are cautionary, predictive or forward-looking in nature), there is no pending or threatened action or proceeding affecting the Borrower or any of its Significant Subsidiaries or properties before any court, governmental agency or arbitrator arbitrator, that might reasonably be expected to constitute a Material Adverse Change, and since December 31, 2010 there have been no material adverse developments in any action or proceeding so disclosed that might reasonably be expected to constitute a Material Adverse Change.
(h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan of the Borrower or any of its ERISA Affiliates which would result in a liability to the Borrower, no “prohibited transaction” has occurred with respect to any Plan of the Borrower that is reasonably expected to result in a liability to the Borrower and neither the Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any withdrawal liability under ERISA to any Multiemployer Plan, in each case that could reasonably be expected to have constitute a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse EffectChange.
(gi) No event The Borrower has occurred filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or, to the extent the Borrower is continuing that constitutes contesting in good faith by appropriate proceedings an Event assertion of Default or that would constitute an Event of Default but liability based on such returns and has provided adequate reserves for the requirement that notice be given or time elapse or bothpayment thereof in accordance with GAAP.
(hj) The Neither the Borrower nor any Significant Subsidiary of the Borrower is not engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds making of each Extension of Credit, not more Margin Stock will constitute less than 25% of the value 25 percent of the assets (as determined by any reasonable method) of the Borrower and its Significant Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxon a consolidated basis.
(ik) The Borrower is not an “investment company” or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, Neither the Borrower or any Affiliate of the Borrower (i) the Borrower has not incurredis a Sanctioned Person, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any has more than 15% of its ERISA Affiliates has incurred assets in Sanctioned Countries, or (iii) derives more than 15% of its operating income from investments in, or transactions with, Sanctioned Persons or Sanctioned Countries. No part of the proceeds of any liability Advance hereunder will be used directly or obligation under the WARN Actindirectly to fund any operations in, which remains unpaid finance any investments or unsatisfiedactivities in or make any payments to, a Sanctioned Person or a Sanctioned Country.
(m) The reports, financial statements and other written information furnished by or on behalf Neither the making of the Borrower to Advances hereunder nor the Administrative Agentuse of the proceeds thereof will violate the PATRIOT Act, any LC Issuing Bank or any Lender pursuant to or in connection the Trading with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934Enemy Act, as amended, do not contain and will not contain, when taken as a whole, or any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or will be made, not misleading in any material respect; provided that, with respect to projections enabling legislation or executive order relating thereto. The Borrower and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements its Significant Subsidiaries are in fact achieved will depend upon future events some of which are not within compliance in all material respects with the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedPATRIOT Act.
(n) As Each of the date deliveredBorrower and its Significant Subsidiaries has timely filed all material reports, documents and other materials required to be filed by it in order to comply with the information included in the Beneficial Ownership Certificationrequirements of all applicable laws, if anyrules, is true regulations and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctionsorders of any governmental authority, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are is otherwise in compliance with Anti-Corruption Laws the requirements of all applicable laws, rules, regulations and applicable Sanctions orders of any governmental authority in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge respect of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any conduct of its ERISA Affiliates on account business and the ownership and operation of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) each case to the extent that the failure to do so could notcomply therewith, individually or in the aggregate, could not reasonably be expected to have constitute a Material Adverse EffectChange.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it owns or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualification, be licensed except where the failure to so qualify would or be licensed could not materially adversely affect reasonably be expected 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 businessproperties and to carry on its business as now conducted and as proposed to be conducted. All of the outstanding capital stock of the Borrower has been validly issued, condition (financial or otherwise), operations or propertiesis fully paid and non-assessable. The outstanding capital stock of the Borrower is free and clear of all Liens.
(b) The Borrower has no Subsidiaries.
(c) The execution, delivery and performance by the Borrower of each the Loan Document to which it is, is or is to become, be a party, and the consummation of the transactions contemplated hereby, are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) contravene the Borrower’s 's organizational documents, (ii) law applicable to the Borrower violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination or its propertiesaward, or (iii) conflict with or result in the breach of, or constitute a default under, any contractual contract, loan agreement, indenture, mortgage, deed of trust, lease or legal restriction other instrument binding on or affecting the Borrower or its propertiesany 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 the Borrower.
(cd) No authorization or approval or other action by, and no notice to or filing with, any Salvadoran governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is or is to become, be a party, except or for the FERC Authorizationconsummation of the transactions contemplated hereby, which has (ii) the grant by the Borrower of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created by the Collateral Documents (including the first priority nature thereof) or (iv) the exercise by the Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, have been duly obtained, taken, given or made and is are in full force and effect.
(de) This Agreement and the other Loan Documents to which it is, or is to become, a party have has been or will be (as the case may be) duly executed and delivered by it, and this the Borrower. This Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed The pro forma and forecasted balance sheets, income statements and statements of cash flows of the Borrower delivered to the Lender pursuant to Section 3.01 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in the Disclosure Documentslight of conditions existing at the time of delivery of such forecasts, there and represented, at the time of delivery, the Borrower's best estimate of its future financial performance.
(g) No information, exhibit or report furnished by the Borrower to the Lender (including the Information Memorandum when delivered) in connection with the negotiation 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.
(h) The Lender has received and reviewed the Insurance Policies and has found them acceptable.
(i) There is no action, suit, investigation, litigation or proceeding, including any Environmental Action, pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to materially affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(j) The operations and properties of the Borrower comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past material non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, and no circumstances exist that could (i) form the basis of an Environmental Action against such Person or any of its properties that could reasonably be expected to have a Material Adverse Effect. There has been no change in Effect or (ii) cause any matter disclosed in such filings that could reasonably property to be expected subject to result in such a Material Adverse Effectany material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(hk) The Borrower is not engaged in the business of extending a party to any indenture, loan or credit for the purpose of purchasing agreement or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase lease or carry any Margin Stock other agreement or to extend credit to others for the purpose of purchasing instrument or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) any charter or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements thereincorporate restriction that, in the light of the circumstances under which they were or will be madeeach case, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The Collateral Documents create a valid and perfected first priority security interest in the Collateral, securing the payment of the Obligations owing to the Secured Party under the Loan Documents and all filings and other actions necessary or desirable to perfect and protect such security interest set forth therein shall have been duly taken. The Borrower is the legal and beneficial owner of the Collateral pledged by it and that the Collateral is free and clear of an Lien, except for the liens and security interests created or permitted under the Loan Documents.
(m) Neither the business nor the properties of the Borrower are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or other casualty (whether or not covered by insurance) that could be reasonably likely to have a Material Adverse Effect.
(n) Set forth on Schedule 3.01(m)
Appears in 1 contract
Samples: Credit Agreement (Pricesmart Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower and each of its Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, qualification necessary (except where the failure to so qualify would not materially adversely affect its business, condition (financial or otherwiseconstitute a Material Adverse Change), operations or properties.
(b) The execution, delivery and performance by the Borrower of each this Agreement and the other Loan Document Documents to which it is, is or is to become, will be a party, and the receipt by the Borrower of the proceeds of Extensions of Credit on the date of any Extension of Credit, are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not and will not contravene (i) the Borrower’s organizational documents's charter or by-laws, (ii) law applicable to the Borrower or its propertiesany law, or (iii) any legal or contractual or legal restriction binding on or affecting the Borrower (including, without limitation, the PSC Order); and such execution, delivery and performance do not and will not result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action byGovernmental Approval is required in connection with the execution and delivery, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement any Loan Document, other than (including obtaining any Extensions of Credit under this Agreementi) or any other Loan Document to which it is, or is to become, a party, except for the FERC AuthorizationPSC Order, which has been duly obtained, order is final and is in full force and effecteffect and not subject to appeal, rehearing, review or reconsideration and such Governmental Approval as may be necessary for the outstanding principal balance of the Extensions of Credit to be permitted to exceed $240 million and (ii) from any Trigger Date, additional Governmental Approvals required to be obtained for the term of this Agreement to extend past such Trigger Date.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subjectsubject to the qualifications, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general principles application affecting rights and remedies of equity (regardless creditors and that the remedy of whether enforceability specific performance or of injunctive relief is considered in a proceeding in equity or at law)subject to the discretion of the court before which any proceedings therefor may be brought.
(e) Since December 31, 2003, there has been no Material Adverse Change.
(f) The audited consolidated financial statements balance sheets of the Borrower and its Subsidiaries as of at December 31, 20232003, and for the year ended on such date, as set forth in related audited consolidated statements of income of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLPthen ended, and the unaudited consolidated financial statements balance sheets of the Borrower and its Subsidiaries as of at March 31, 20242004, and the related unaudited consolidated statements of income for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10three-Q for the fiscal quarter ended on such date, as filed with the SECmonth period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the three months ended March 31, 2004, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance accordance, in all material respects, with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(fg) Except as disclosed in the Disclosure DocumentsParent's Report on Form 10-K for the year ended December 31, 2003 and Report on Form 10-Q for the period ended March 31, 2004, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries or properties before any court, governmental agency or arbitrator arbitrator, that could might reasonably be expected to have constitute a Material Adverse Effect. There has Change, and since December 31, 2003 there have been no change material adverse developments in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default action or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothproceeding so disclosed.
(h) The Borrower No ERISA Event has occurred or is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of reasonably expected to occur with respect to any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Plan of the Borrower and or any of its Subsidiaries subject ERISA Affiliates which would result in a material liability to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning Borrower. No "prohibited transaction" has occurred with respect to any Plan of the Investment Company Act of 1940, as amended.
(j) Except as could not Borrower that is reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) material liability to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither Borrower. Neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower nor reasonably expects to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in incur any material respect; provided that, with respect withdrawal liability under ERISA to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedany Multiemployer Plan.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Agent and each of the Lenders as follows:
(a) The Borrower it has been duly incorporated and is (i) duly organized, validly existing and in good standing subsisting as a corporation under the laws of the jurisdiction of its organization, and (ii) duly Ontario; it is qualified to do carry on its business as a foreign organization in each jurisdiction in which the nature of the its business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its have a material adverse effect on the business, assets, condition (or prospects, financial or otherwise), operations or properties.of the Borrower; it has the power and authority to enter into and perform its obligations under the Documents to which it is a party and all other instruments and agreements delivered pursuant to any of the Documents and to own its property and carry on its business as currently conducted; and it has obtained all licences, permits and approvals from all governments, governmental commissions, boards and other agencies required in respect of its operations;
(b) The the execution, delivery and performance by of the Borrower of each Loan Document Documents to which it is, is a party and every other instrument or is agreement delivered pursuant to become, a party, are within the Borrower’s organizational powers, Documents have been duly authorized by all necessary organizational requisite action and do not contravene (i) on the Borrower’s organizational documents, (ii) law applicable to part of the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower each of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which such documents has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, the Borrower and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, constitutes a valid and binding obligation of the Borrower against it enforceable against the Borrower in accordance with its terms, subject, however, terms subject to any (i) applicable bankruptcy, reorganization, rearrangementinsolvency, moratorium or and similar laws affecting generally at the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered time in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding effect affecting the Borrower or any rights of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan creditors generally and (ii) neither equitable remedies such as injunctions and specific performance which may only be granted in the Borrower nor any discretion of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, court before which remains unpaid or unsatisfied.they are sought;
(mc) The reportsthere are no actions, financial statements and other written information furnished by suits or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees andproceedings pending or, to the knowledge of the Borrower, threatened against or affecting it at law or in equity or before or by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, or before any arbitrator of any kind, which would result in any material adverse change in its directors and agentsbusiness, are operations, prospects, properties, assets or condition, financial or otherwise, or in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, its ability to perform its obligations under any Subsidiary thereof Document to which it is a party or any other agreement or instrument delivered pursuant to this Agreement; it is not aware of their respective officers any existing ground on which any such action, suit or employeesproceeding might be commenced with any reasonable likelihood of success; it is not in default with respect to any judgment, order, writ, injunction, decree, award, rule or (b) to the knowledge regulation of the Borrowerany court, any director arbitrator or agent of the Borrower governmental department, commission, board, bureau, agency or any Subsidiary that will act in any capacity in connection with instrumentality, domestic or benefit from the credit facility established herebyforeign, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliatewhich, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually either separately or in the aggregate, reasonably be expected would result in any such material adverse change;
(d) it is not a party to any agreement or instrument which materially adversely affects its ability to perform its obligations under any of the Documents to which it is a party or any agreements or instruments delivered pursuant to this Agreement which materially adversely affects its business, operations, prospects, properties, assets or condition, financial or otherwise;
(e) it is not subject to any restriction or any judgment, order, writ, injunction, decree or award which materially adversely affects, or to the best of its knowledge in the future will materially adversely affect, its business, operations, prospects, properties, assets or condition, financial or otherwise, or its ability to perform its obligations under any of the Documents to which it is a party or any agreements or instruments delivered pursuant to this Agreement;
(f) neither the execution nor delivery of the Documents to which it is a party or any agreements or instruments delivered pursuant to this Agreement, the consummation of the transactions herein and therein contemplated, nor compliance with the terms of this Agreement or thereof conflicts with or will conflict with, or results or will result in any breach of, or constitutes a default under, any of the provisions of its constating documents, articles or by-laws or any agreement, instrument, court order or arbitration award to which it is a party or by which it or any of its property and assets are bound or results or will result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon its properties or assets or in the contravention of any applicable law, rule or regulation of Canada or of any jurisdiction in which it carries on business;
(g) all consents, approvals, authorizations, declarations, registrations, filings, notices and other actions whatsoever required as at the date of this Agreement in connection with its execution and delivery of any of the Documents to which it is a party and all other agreements or instruments delivered pursuant to this Agreement, and the consummation of the transactions contemplated by this Agreement, have been obtained, made or taken; and
(h) no event has occurred which constitutes a Material Adverse EffectDefault or an Event of Default.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) 1. The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) 2. The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) 3. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) 4. This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower Effective as of the Closing Date, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the --------- following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) The Borrower it is (i) a national banking association and is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of America and has the power and authority to enter into and perform its organization, obligations under the Trust Agreement and (iiassuming due authorization, execution and delivery of the Trust Agreement by the Holders) duly qualified has the corporate and trust power and authority to do business act as a foreign organization in the Owner Trustee and to enter into and perform the obligations under each jurisdiction in of the other Operative Agreements to which the nature of the business conducted Trust Company or the property ownedOwner Trustee, operated as the case may be, is or leased will be a party and each other agreement, instrument and document to be executed and delivered by it requires in connection with or as contemplated by each such qualificationOperative Agreement to which the Trust Company or the Owner Trustee, except where failure to so qualify would not materially adversely affect its businessas the case may be, condition (financial is or otherwise), operations or properties.will be a party;
(b) The the execution, delivery and performance by the Borrower of each Loan Document Operative Agreement to which it is, is or is to become, will be a party, are within either in its individual capacity or (assuming due authorization, execution and delivery of the Borrower’s organizational powersTrust Agreement by the Holders) as the Owner Trustee, have as the case may be, has been duly authorized by all necessary organizational action on its part and do not contravene neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby, nor compliance by it with any of the terms and provisions thereof (i) the Borrower’s organizational documentsdoes or will require any approval or consent of any trustee or holders of any of its indebtedness or obligations, (ii) law applicable does or will contravene any Legal Requirement relating to its banking or trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the Borrower creation of any Lien upon any of its property under, (A) its charter or its propertiesby-laws, or (iiiB) any contractual indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or legal restriction binding on credit agreement or affecting the Borrower other agreement or instrument to which it is a party or by which it or its properties.properties may be bound or affected, which contravention, breach, default or Lien under clause (B) would materially and adversely affect its ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or (iv) does or will require any Governmental Action by any Governmental Authority regulating its banking or trust powers;
(c) No authorization or approval or other action bythe Trust Agreement and, and no notice to or filing with, any governmental authority or regulatory body assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower Holders, each other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before the Closing Date will be, duly executed and delivered by the Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower Trust Company or the Owner Trustee, as the case may be, in accordance with its terms, subject, howeverthe terms thereof;
(d) there is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party, either in its individual capacity or as the Owner Trustee, before any applicable bankruptcyGovernmental Authority that, reorganizationif adversely determined, rearrangementwould materially and adversely affect its ability, moratorium in its individual capacity or similar laws affecting generally as the enforcement Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of creditors’ rights and remedies and any of the Operative Agreements to general principles of equity (regardless of whether enforceability which it is considered in or will become a proceeding in equity or at law).party;
(e) The consolidated financial statements it, either in its individual capacity or as the Owner Trustee, has not assigned or transferred any of its right, title or interest in or under the Borrower and Lease or its Subsidiaries as of December 31interest in any Property or any portion thereof, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, except in accordance with GAAPthe Operative Agreements;
(f) no Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) except as otherwise contemplated in the Operative Agreements, subjectthe proceeds of the Loan and Holder Advance shall not be applied by the Owner Trustee, either in its individual capacity or as the Owner Trustee, for any purpose other than as specified in Sections 5.1 and 5.2 hereof;
(h) neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar security relating to a Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such financial statements for action alone, the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence issuance or sale of detailed footnotes. Except as disclosed any interest in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in Trust Estate or the financial condition or operations Notes to the provisions of Section 5 of the Borrower.Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(fi) Except as disclosed in the Disclosure DocumentsOwner Trustee's principal place of business, there is no pending or threatened action or proceeding affecting chief executive office and office where the Borrower or any of its Subsidiaries before any courtdocuments, governmental agency or arbitrator that could reasonably be expected accounts and records relating to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000;
(gj) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower Owner Trustee is not engaged in principally in, and does not have as one of its important activities, the business of extending credit for the purpose of purchasing or carrying Margin Stockany margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of any Extension of Credit the Loan or the Holder Advance will be used by it to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying such margin stock or for any purpose that violates, or is inconsistent with, the proceeds provisions of each Extension of CreditRegulation T, not more than 25% U, or X of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.Board;
(ik) The Borrower the Owner Trustee is not an “"investment company” " or a company “controlled” controlled by an “"investment company” " within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.Act;
(l) Except each Property is free and clear of all Lessor Liens attributable to the Owner Trustee, either in its individual capacity or as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.Owner Trustee; and
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements thereinOwner Trustee, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if anyits trust capacity, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed not a party to ensure compliance any documents, instruments or agreements other than the Operative Agreements executed by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicableOwner Trustee, in accordance with GAAPits trust capacity.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, organization and (ii) is duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties. The execution, delivery and performance by the Borrower of the Loan Documents do not contravene any provision of the Mortgage.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit Advances under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC AuthorizationRegulatory Authorizations, which has have been duly obtained, and is are in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2012 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, 2013 and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such financial statements for the fiscal quarter ended March 31, 2013, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, . Except as disclosed in the case of such financial statements Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012, the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 20242013, to year-end adjustments and the absence Borrower’s Current Report on Form 8-K dated May 20, 2013 (filed May 20, 2013, a copy of detailed footnotes. Except as disclosed in the Disclosure Documentswhich has been furnished to each Bank), since December 31, 20232012, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure DocumentsBorrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012 and Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2013, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit Advance will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of CreditAdvance, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedPlan.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank Agent or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As The Borrower has good and sufficient title to the properties described as owned by it in and as subject to the Lien of the date deliveredMortgage (except properties released under the terms of the Mortgage), subject only to Excepted Encumbrances (as defined in the Mortgage) and to minor defects and encumbrances customarily found in properties of like size and character that do not materially impair the use of such properties by the Borrower. The description of such properties set forth in the Mortgage is adequate to constitute the Mortgage as a Lien thereon; and subject to Section 4.01(o) below, the information included Mortgage, subject only to such minor defects and Excepted Encumbrances, constitutes a valid, direct and first mortgage Lien upon said properties, which include substantially all of the permanent physical properties and franchises of the Borrower (other than those expressly excepted in the Beneficial Ownership CertificationMortgage). All permanent and physical properties and franchises (other than those expressly excepted in the Mortgage) acquired by the Borrower after the date of the Supplemental Indenture will, upon such acquisition, become subject to the Lien of the Mortgage, subject, however, to such Excepted Encumbrances and to liens, if any, is true existing or placed thereon at the time of the acquisition thereof by the Borrower and correct in all respectsexcept as may be limited by bankruptcy law.
(o) The It will be necessary to record the Supplemental Indenture in the offices of the Secretary of State of Arkansas and the offices of the Clerk and Ex-Officio Recorder for the Counties in the State of Arkansas, the Parish Clerk for Ouachita Parish in the State of Louisiana, the Recorder of Deeds for the Counties in the State of Missouri and the County Registrar for the Counties in the State of Tennessee, respectively, in which the Borrower has implemented and maintains owns property, to include the Supplemental Indenture in effect policies and procedures designed to ensure compliance the lien of the Mortgage before the Liens created by the BorrowerSupplemental Indenture become effective as to and enforceable against third parties, its Subsidiaries which filings, once duly effected, are the only recordings, filings, rerecordings and their respective directors, officers, employees refilings required by law in order to protect and agents with Anti-Corruption Laws and applicable Sanctions, and maintain the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge lien of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or Mortgage on any of their respective officers or employeesthe property described therein and subject thereto. However, or (b) to the knowledge of the Borrower, any director or agent all permanent physical properties and franchises of the Borrower or any Subsidiary that will act (other than those expressly excepted in any capacity the Mortgage) presently owned by the Borrower are subject to the lien of the Mortgage, subject to minor defects and Excepted Encumbrances of the character referred to in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable SanctionsSection 4.01(n) above.
(p) All payments due from The First Mortgage Bonds are bonds issued pursuant to and entitled to the Borrower or any benefit of its ERISA Affiliates on account of wages the Mortgage and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, authenticated and delivered in accordance with GAAPthe Mortgage.
(q) Upon delivery of the First Mortgage Bonds to the Administrative Agent, and unless and until all the First Mortgage Bonds have been released by the Administrative Agent, all the First Mortgage Bonds have been paid in full, or the Commitments have been terminated and all amounts payable by the Borrower hereunder have been paid in full, (i) the First Mortgage Bonds are outstanding, (ii) the Administrative Agent is the holder of the First Mortgage Bonds for all purposes under the Mortgage (unless the Administrative Agent transfers such First Mortgage Bonds) and (iii) the First Mortgage Bonds rank pari passu with all other bonds and instruments issued pursuant to the Mortgage.
(r) The Mortgage is a valid and binding obligation of the Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP its terms, has not been terminated, canceled or waived in any material respect and remains in full force and effect.
(bs) to As of the extent that Closing Date, the failure to do so could notaggregate principal amount of outstanding mortgage bonds issued under the Mortgage, individually or in excluding the aggregateFirst Mortgage Bonds, reasonably be expected to have a Material Adverse Effectis $2,000,979,000.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is Each Loan Party and their Material Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it own or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualificationbe licensed, except where the failure to be so qualify qualified would not materially adversely affect 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 business, condition (financial or otherwise), operations or propertiesproperties and to carry on its business as now conducted as and proposed to be conducted.
(b) The execution, delivery and performance by the Borrower each Loan Party of each Loan Document to which it is, is or is to become, be a party, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s organizational such Loan Party's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) the Borrower’s organizational documents, such Loan Party's charter or by-laws or (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower any Loan Party, any of its Subsidiaries or any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by any Loan Party of the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document Documents to which it is, is or is to become, be a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement has been, and each of the other Loan Documents to which it iswhen delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Loan Party party thereto. This Agreement is, and upon execution and delivery thereof each of the other Loan Document Documents when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party party thereto enforceable against the Borrower such Loan Party in accordance with its their respective terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting the rights of creditors generally the enforcement of creditors’ rights and remedies and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equity.
(e) The consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of at December 3130, 20232001, and for the year ended on such date, as set forth in related Consolidated statements of income and cash flows of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SECthen ended, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECindependent public accountants, copies of each of which have been furnished to each BankLender, fairly present the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates date and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAPgenerally accepted accounting principles consistently applied. Since December 30, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232001, there has been no material adverse change in the financial condition or operations of the BorrowerMaterial Adverse Change.
(f) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, suit, investigation, litigation or proceeding proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably be expected likely to have a Material Adverse Effect. There Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status, or financial effect on the Borrower or any matter disclosed in such filings of its Subsidiaries, of the Disclosed Litigation from that could reasonably be expected to result in such a Material Adverse Effectdescribed on Schedule 3.01(b) hereto.
(g) No event has occurred Neither the Information Memorandum nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Agent or and is continuing that constitutes an Event Lender in connection with the negotiation and syndication of Default the Loan Documents or that would constitute an Event pursuant to the terms of Default but for the requirement that notice be given Loan Documents contained any untrue statement of a material fact or time elapse or bothomitted to state a material fact necessary to make the statements made therein not misleading.
(h) The Borrower and each of its Material Subsidiaries has filed, has caused to be filed or has been included in all tax returns (Federal, state, local and foreign) required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties.
(i) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Extension of Credit Advance will be used to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxmargin stock.
(ij) The Borrower is not an “"investment company” ", or a company “"controlled” " by an “"investment company” ", within the meaning of the Investment Company Act of 1940, as amended.
(jk) Except Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as could not reasonably be expected currently conducted or to result in a Material Adverse Effectutilize such properties for their intended purposes, no ERISA Termination Event has occurredand none of such property is subject to any Lien, except as permitted by Section 5.02(a).
(l) Each of the Borrower and its Subsidiaries owns, or is reasonably expected licensed to occuruse, with respect all trademarks, tradenames, copyrights, patents and other intellectual property material to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Planits business, and since the date use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such Schedule B there has been no change infringements that, individually or in such funding status that the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(lm) Except as could not reasonably be expected to result All intercompany loans in a Material Adverse Effect, (i) the Borrower has not incurred, principal amount of $25,000,000 or more by and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of among the Borrower and actual results may vary from its Subsidiaries as of the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedEffective Date are described on Schedule 4.01(m) hereto.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federalexperienced no strikes, state and other Tax returns and reports required labor disputes, slow downs or work stoppages due to be filedlabor disagreements which have had, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, would reasonably be expected to have have, a Material Materially Adverse Effect, and, to the best knowledge of the Borrower, there are no such strikes, disputes, slow downs or work stoppages threatened against the Borrower or any of its Subsidiaries.
(o) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as of the date hereof and as of the Toll Equity Loan Commitment Establishment Date (except to the extent that any representation and warranty set forth below specifically refers to an earlier or specified date, in which case such representation and warranty shall be as of such earlier or specified date) as follows:
(a) The Borrower has the requisite power and authority; has obtained all Governmental Approvals; and has taken all actions necessary to (1) enter into, deliver and perform its obligations under each Transaction Document to which it is a party (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.or
(b) The execution, Borrower has duly authorized the execution and delivery and performance by the Borrower of each Loan Transaction Document to which it is, is a party (or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required assignment agreement for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to those Transaction Documents for which it isis an assignee), the performance of its obligations hereunder and the incurrence of the debt made available to it under each Finance Document. The authorization has not been repealed, revoked, rescinded or is to become, a party, except for the FERC Authorization, which has been duly obtained, amended and is in full force and effect.
(dc) This Agreement The execution and delivery by the other Loan Documents Borrower of each Transaction Document to which it isis a party (or the assignment agreement for those Transaction Documents for which it is an assignee), and the compliance with the terms and conditions of the Transaction Documents (or any such assignment agreement) will not, in any material respect, (1) violate any existing law applicable to it or (2) result in default under the Trust Agreement, or any mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or other agreement, instrument or restriction of any kind to which any of its assets are subject.
(d) Except as disclosed, there is no litigation at law or in equity or any proceeding before any Government Authority involving the Borrower pending or, to becomethe best knowledge of the Borrower, threatened, that could reasonably be expected to have a material adverse effect on the operations or financial condition of the Borrower.
(e) The execution and delivery by the Borrower of each Transaction Document to which it is a party have been (or the assignment agreement for those Transaction Documents for which it is an assignee), the performance by the Borrower of its obligations hereunder and under the Transaction Documents and the consummation of the transactions herein and therein contemplated do not and will not in any material respect conflict with, or constitute a material breach or result in a material violation of the Borrower’s statutory authority, any agreement or other instrument to which the Borrower is a party or by which it is bound or any constitutional or statutory provision or order, rule, regulation, decree or ordinance of any court, government or Government Authority having jurisdiction over the Borrower or its property and will not result in or require the creation or imposition of any security interest in any of the Borrower’s property or the Trust Estate other than the security interests created pursuant to the Trust Agreement.
(f) The Borrower has obtained or caused to be obtained all Governmental Approvals that (1) are required to be obtained by the Borrower as a condition precedent to the case may beexecution and delivery of each Transaction Document to which it is a party (or the assignment agreement for those Transaction Documents for which it is an assignee), or (2) duly executed are required for the operation of the System or the performance by the Borrower of its obligations under any Transaction Document to which it is a party or an assignee or for the grant by the Borrower of the security interest
(g) The Borrower will fully and delivered by itfaithfully perform all the duties and obligations which it has covenanted and agreed in the Trust Agreement.
(h) Each Transaction Document to which it is a party or assignee, and this Agreement isassuming due authorization, and upon execution and delivery thereof each by the other Loan Document will beparties thereto, constitutes the legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its termsthe terms thereof, subject, however, to any except as may be limited by applicable bankruptcy, insolvency, reorganization, rearrangementmoratorium, moratorium fraudulent transfer or other similar laws or judicial action affecting generally the enforcement of creditors’ rights generally and remedies and to the application of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ei) The consolidated financial statements No Default or Event of Default with respect to the Borrower has occurred and is continuing, no “Event of Default” (as defined in the Trust Agreement) has occurred and is continuing, no event has occurred that would be (with the expiry of any applicable grace period, the giving of notice or the making of any determination under the Trust Agreement or any combination of them) a default under the Trust Agreement, and no material default on the part of the Borrower under the Project Agreement has occurred and its Subsidiaries as is continuing.
(j) The Borrower does not have any System Debt other than the
(k) To the actual knowledge of December 31the Borrower, 2023, all insurance required to
(l) The Trust Agreement including the right of the Trustee to retain Revenues is effective to create and for the year ended on such date, as set forth perfect a legally valid and enforceable interest in the Borrower’s Annual Report on Form 10-K rights in the Revenues.
(m) Each Project Document to which the Borrower is a party or an assignee is in full force and effect and the Borrower is not in default under any of such agreements or contracts, and to the actual knowledge of the Borrower, no third party to any of such agreements or contracts is in default thereunder, except as, in either case, could not reasonably be expected to have a Material Adverse Effect.
(n) True and complete copies of all Transaction Documents to which the Borrower is a party (and the assignment agreement for the fiscal year ended on such date, as filed with the SEC, accompanied by those Transaction Documents for which it is an opinion of Deloitte & Touche LLPassignee) have been delivered to TxDOT, and the consolidated financial statements Borrower is not party to any other material Project-related agreements, except for any Project Document to which the Borrower is a party.
(o) The Borrower (i) has provided or made available to TxDOT copies of all material environmental due diligence reports or analyses prepared by it or on its
(p) None of the information in any agreement, document, certificate, exhibit, financial statement, book, record, material or report or other written information furnished by the Borrower, when taken as a whole, contained any untrue statement of material fact or omitted to state a material fact necessary in order to make the statements contained therein not materially misleading; provided, that the Borrower and its Subsidiaries does not represent as to the accuracy of March 31, 2024, and for the fiscal quarter ended on such date, as set forth information provided by TxDOT or the statements made in the Borrower’s Quarterly Report on Form 10-Q reports by the General Engineering Consultant, the Traffic Consultant or any other advisor or consultant providing services to the Project; and provided further, that no representation or warranty is made as to any forecasts, projections, opinions or other forward looking statements and the Borrower only makes representations regarding such information to its actual knowledge.
(q) The Borrower has no actual knowledge of any builders’ liens or analogous claims for the fiscal quarter ended on such date, as filed payments which are overdue with respect to work or services to be performed or materials supplied in connection with the SECSystem, copies which claim has not been fully satisfied, and, if registered, duly discharged or vacated, unless there is a bona fide dispute and adequate security as required by law or ruling of each a court has been posted.
(r) Since the date of which the formation of Borrower, no event, other than transactions contemplated by this Agreement and the Transaction Documents, has occurred that could reasonably be expected to have been furnished a Material Adverse Effect or that could reasonably be expected to each Bank, fairly present have a material adverse effect on the consolidated operations or financial condition of the Borrower and its Subsidiaries as at such dates and Borrower. Since the consolidated results date of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023Project Agreement, there has been no material adverse change to the nature, scope or any other aspect of the Project pursuant to any requirement or instruction of any Government Authority of which the Borrower has received actual notice.
(s) The Borrower has not received any communications from, nor is aware of any proceeding by, any Government Authority that could reasonably be expected to result in the financial condition (i) termination or operations revocation of the Borrower’s right and authority to operate the System or (ii) a Material Adverse Effect.
(ft) Except as disclosed To the actual knowledge of the Borrower without inquiry or investigation, no Bankruptcy Event has occurred or is continuing with respect to the Design-Build Contractor or the Capital Maintenance Contractor.
(u) To the actual knowledge of the Borrower, the development and construction of the System is being carried out in compliance in all material respects with all Environmental laws and, to the Disclosure Documentsactual knowledge of the Borrower, there is are no pending or threatened action or proceeding affecting Environmental Claims with respect to the System, except to the extent that noncompliance with such claims could not reasonably be expected to give rise to a
(v) All insurance required to be maintained by the Borrower or as of the date hereof pursuant to the requirements set forth in this Agreement, the Trust Agreement and the Project Agreement, as applicable, has been obtained and is in full force and effect. All premiums due and payable (if any) in connection therewith have been paid and such insurance complies in full with the insurance required to be maintained by the Borrower pursuant to Section 5.05(f) of this Agreement, the Trust Agreement and the Project Agreement, as applicable.
(w) There are no disputes under any of its Subsidiaries before any court, governmental agency or arbitrator Transaction Document that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(hx) The Borrower is not engaged in the business Official Statement as of extending credit for the purpose of purchasing or carrying Margin Stock, its date and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% as of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a)Closing Date, (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do did not contain and will not contain, when taken as a whole, any untrue or misleading statement of a material fact and do not or omit and will not omit, when taken as a whole, to state any material fact necessary to make the such statements therein, in the light of the circumstances under which they were or will be made, not misleading misleading, in any material respect; provided that, with respect each case to projections the extent such statements and forward looking statements, facts (i) relate to the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at or the time made and notes that whether Project or not such projections the System or forward looking statements (ii) are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material andotherwise known, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees andfollowing reasonably diligent inquiry, to the knowledge of Borrower; provided, that (x) this representation does not apply to any information in the BorrowerOfficial Statement regarding TxDOT, its directors the traffic and agentsrevenue study report and the engineer’s report, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (ay) the Borrower, this representation does not apply to any Subsidiary thereof or any of their respective officers or employees, or (b) extent to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds section thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctionsentitled “Tax Matters”.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Toll Equity Loan Agreement
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower Each Loan Party that is a corporation (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it owns or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualification, be licensed except where the failure to so qualify would or be licensed is not materially adversely affect reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate power and authority to own or lease and operate its business, condition (financial or otherwise), operations or propertiesproperties and to carry on its business as now conducted and as proposed to be conducted.
(b) Each Loan Party that is a partnership or a limited liability company (i) is a partnership or a limited liability company duly formed and validly existing under the laws of the State of its formation, (ii) is duly qualified 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 is not reasonably likely to have a Material Adverse Effect and (iii) has all requisite partnership or limited liability company power and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by the Borrower of each Loan Party of this Credit Agreement, the Notes, each other Loan Document and each related document to which it is, is or is to become, be a party, and the consummation of the transactions contemplated herein and therein, are within the Borrower’s organizational such Loan Party's corporate, partnership or limited liability company powers, have been duly authorized by all necessary organizational action and corporate, partnership or limited liability company action, and, to each such Loan Party's knowledge, do not contravene (i) the Borrower’s contravene such Loan Party's organizational documents, (ii) law applicable violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, except where such violation is not reasonably likely to the Borrower or its propertieshave a Material Adverse Effect except as set forth on Schedule II hereof, or (iii) except as set forth on Schedule II hereof, conflict with or result in the breach of, or constitute a default under, any contractual contract, loan agreement, indenture, mortgage, deed of trust, lease or legal restriction other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties, except where such conflict, breach or default is not reasonably likely to have a Material Adverse Effect or (iv) except for the Borrower Liens created by the Collateral 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 propertiesSubsidiaries.
(cd) No Other than as set forth on Schedule III hereof, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or , the Notes, any other Loan Document or any related document to which it is, is or is to become, be a party, except or for the FERC Authorizationconsummation of the transactions contemplated hereby, which has been duly obtained(ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, and is (iii) the perfection or maintenance of the Liens created by the Collateral Documents or (iv) the exercise by the Lender of its rights under the Loan Documents or the remedies in full force and effectrespect of the Collateral pursuant to the Collateral Documents.
(de) This Credit Agreement has been, and the Notes, each other Loan Documents to which it isDocument and each related document when delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Loan Party thereto. This Credit Agreement is, and upon execution and delivery thereof the Notes, each other Loan Document and each related Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party thereto, enforceable against the Borrower such Loan Party in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ef) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of March 31, 20242002, and the related Consolidated statement of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended on such dateyear then ended, as set forth in and the Consolidated balance sheet of the Borrower’s Quarterly Report on Form 10-Q , and its Subsidiaries as at March 31, 2002 and the related Consolidated statement of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended on such datenine months then ended, as filed with duly certified by the SECChairman of the Board of Borrower or any other officer of Borrower, copies of each of which have been furnished to each Bankthe Lender, fairly present present, subject, in the consolidated case of said balance sheet as at March 31, 2002, and said statement of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended generally accepted accounting principles applied on a consistent basis. Since March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232002, there has been no material adverse change in the financial condition or operations of the BorrowerMaterial Adverse Change.
(fg) Except All financial statements delivered by any Loan Party to the Lender, are true, correct and complete in all material respects, fairly represent such Loan Party's financial condition as disclosed of the date hereof and thereof, and no information has been omitted that would make the information previously furnished misleading or incorrect in the Disclosure Documentsany material respect.
(h) To such Loan Party's knowledge, there is no pending or threatened action action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries Loan Party not covered by insurance (subject to reasonable deductibles), including any Environmental Action, pending before any court, governmental agency or arbitrator that could (i) would be reasonably be expected likely to have a Material Adverse Effect. There Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of this Credit Agreement, the Notes, any other Loan Document or any Related Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status or financial effect on any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% Loan Party of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxDisclosed Litigation from that described on Schedule IV hereof.
(i) The Borrower is not Except as set forth on Schedule V(a) hereof to such Loan Party's knowledge, the operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all Environmental Laws, all necessary Environmental Permits have been obtained and are in effect for the operations and properties of each Loan Party and its Subsidiaries, each Loan Party and its Subsidiaries are in compliance in all material respects with all such Environmental Permits, and, no circumstances exist that would be reasonably likely to (i) form the basis of an “investment company” Environmental Action against any Loan Party or any of its Subsidiaries or any properties described in the Mortgages or the 59th Street Property that could have a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940Material Adverse Effect ox (xx) xxxxe any such property to be subject to any restrictions on ownership, as amendedoccupancy, use or transferability under any Environmental Law.
(j) Except as could set forth in the environmental reports heretofore delivered to the Lender as set forth on Schedule V(b) hereof, none of the operations and properties of each Loan Party is listed or, to the knowledge of any Loan Party, proposed for listing on the National Priorities List under CERCLA or on the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the Environmental Protection Agency or any analogous state list of sites requiring investigation or cleanup or is adjacent to any such property. Except as would not reasonably be expected to result in have a Material Adverse Effect, no ERISA Termination Event underground storage tanks, as such term is defined in 42 U.S.C.Section 6991, are located on any property in violation of applicable Environmental Laws. Except as set forth on the environmental reports heretofore provided to the Lender, the Borrower has occurred, or is reasonably expected to occur, with respect to no knowledge of any ERISA Planunderground storage tank located on any Property adjoining any Property.
(k) Schedule B Each Loan Party and each of its Subsidiaries has filed or has caused to be filed all income tax returns (Actuarial InformationFederal, state and local) required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties. The Borrower is not aware of any material unasserted claims for prior taxes against it for which adequate reserves satisfactory to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which Lender have not been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effectestablished.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurredEach Mortgagor, and does not reasonably expect each of 731 Commercial LLC and 731 Residential LLC has good, marketable and insurable fee simple title to incurthe real property described in the Mortgage executed and delivered by such Mortgagor and the 59th Street Property, any withdrawal liability under ERISA to any Multiemployer Plan as applicable, free and (ii) neither clear of all Liens, xxxxx xxxn those disclosed on such Schedule and Liens created or permitted by the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedLoan Documents.
(m) The reportsExcept as set forth on Schedule VI hereof, financial statements and other written information furnished by no Loan Party is in default in the performance, observance or on behalf fulfillment of any of the Borrower to the Administrative Agentobligations, any LC Issuing Bank covenants or any Lender pursuant to conditions contained herein or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect agreement or instrument to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether which it is a party or not such projections by which it or forward looking statements are in fact achieved will depend upon future events some any of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedits properties is bound.
(n) As of the date deliveredhereof, there has been no Material Adverse Change since the information included in date of the Beneficial Ownership Certification, if any, is true and correct in all respectsmost recent financial statements provided by the Borrower or such Loan Party to the Lender.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the BorrowerNo Loan Document or other document, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, certificate or statement furnished to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof Lender by or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent on behalf of the Borrower or any Subsidiary that will act other Loan Party contains any untrue statement of a material fact or omits to state a material fact necessary in any capacity in connection with or benefit from order to make the credit facility established hereby, statements contained herein and therein not misleading. It is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated specifically understood by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages that all such statements, representations and employee and retiree health and welfare insurance and other benefits warranties shall be deemed to have been paid or properly accrued on relied upon by the financial statements of Lender as an inducement to make the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) Loan to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectBorrower.
Appears in 1 contract
Samples: Credit Agreement (Alexanders Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a corporation duly organized, validly existing and existing, in good standing standing, and authorized to transact business under the laws of the jurisdiction State of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesincorporation.
(b) The execution, delivery and performance by the Borrower of each Loan Document the Credit Documents to which it is, or is to become, a party, party (i) are within the Borrower’s organizational corporate powers, (ii) have been duly authorized by all necessary organizational action and corporate action, (iii) do not contravene (iA) the Borrower’s organizational documentscharter or by-laws, (ii) law applicable to as the Borrower or its propertiescase may be, or (iiiB) any contractual law, rule or regulation, or any material Contractual Obligation or legal restriction restriction, binding on or affecting the Borrower or its propertiesany Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of the Borrower or any Material Subsidiary under any Contractual Obligation binding on or affecting the Borrower or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Credit Document to which it is, or any of them is to become, a party, except for the FERC Authorization, which has such as (i) have been duly obtained, obtained or made and is that are in full force and effecteffect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) This Agreement and the other Loan Documents Each Credit Document to which it is, or the Borrower is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting generally the enforcement of creditors’ rights generally and remedies and subject to general principles of equity (equity, regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Referenced Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECFinancial Statements, copies of each of which have been made available or furnished to each BankLender, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates the date thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAPGAAP consistently applied.
(f) The Referenced Quarterly Financial Statements, subjectcopies of which have been made available or furnished to each Lender, in the case of such financial statements for the fiscal quarter ended March 31, 2024, fairly present (subject to year-end adjustments audit adjustments) the financial condition of the Borrower and its Subsidiaries as at the date thereof and the absence results of detailed footnotes. Except as disclosed the operations of the Borrower and its Subsidiaries for the period ended on such date, all in the Disclosure Documents, since accordance with GAAP consistently applied.
(g) Since December 31, 20232022, there has been no material adverse change in the financial such condition or operations operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower.
(fh) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, proceeding or proceeding investigation affecting the Borrower or any of its Subsidiaries before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by the Borrower or any of its Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(i) The Borrower and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(j) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There .
(k) Schedule SB (Actuarial Information) to the 2022 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule SB there has been no adverse change in any matter disclosed in such filings that could funding status which may reasonably be expected to result in such have a Material Adverse Effect.
(gl) No event Neither the Borrower nor any ERISA Affiliate has occurred and incurred or is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be given or time elapse or bothexpected to have a Material Adverse Effect.
(hm) The Neither the Borrower is not engaged in nor any ERISA Affiliate has been notified by the business sponsor of extending credit for a Multiemployer Plan that such Multiemployer Plan has been terminated, within the purpose meaning of purchasing or carrying Margin StockTitle IV of ERISA, and no proceeds Multiemployer Plan is reasonably expected to be terminated, within the meaning of any Extension Title IV of Credit will ERISA, in either such case, that could reasonably be used expected to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxhave a Material Adverse Effect.
(in) The Borrower is not an “investment company” ”, or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(jo) Except as could not reasonably The Borrower has filed all federal, state and other material income tax returns required to be expected filed by it and has paid or caused to result be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in a Material Adverse Effect, no ERISA Termination Event good faith and by proper proceedings and in respect of which the Borrower has occurred, or is reasonably expected to occur, set aside adequate reserves for the payment thereof in accordance with respect to any ERISA PlanGAAP.
(kp) Schedule B The Borrower and its Subsidiaries are and have been in compliance with all laws (Actuarial Information) including, without limitation, all Environmental Laws), except to the most recent annual report (Form 5500 Series) with respect extent that any failure to each ERISA Planbe in compliance, copies of which have been filed with individually or in the Internal Revenue Service and furnished to the Banksaggregate, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could not reasonably be expected to result in a Material Adverse Effect.
(lq) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) No Subsidiary of the Borrower has not incurredis party to, and does not reasonably expect to incuror otherwise bound by, any withdrawal liability agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to the Borrower, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to the Borrower, other than prohibitions and restrictions permitted to exist under ERISA to any Multiemployer Plan Section 6.01(e).
(r) The information, exhibits and (ii) neither reports furnished by the Borrower nor or any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower Subsidiaries to the Administrative Agent, any LC Issuing Bank Agent or to any Lender pursuant to or in connection with the Loan Documents and negotiation of, or compliance with, the transactions contemplated therebyCredit Documents, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, do not contain any untrue statement material misstatement of a material fact and do not omit and will not omit, when taken as a whole, to state a material fact or any fact necessary to make the statements therein, contained therein not misleading in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(os) The Borrower has and its Subsidiaries have implemented and maintains maintain in effect policies and procedures reasonably designed to ensure compliance by the Borrower, Borrower and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, Borrower and its Subsidiaries and their respective officers and employees and, to the knowledge of the BorrowerBorrower and its Subsidiaries, its respective directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the BorrowerBorrower or its Subsidiaries or, any Subsidiary thereof to the knowledge of the Borrower or its Subsidiaries, any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that of its Subsidiaries which agent will act in any capacity in connection with or benefit from the credit term loan facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or Borrowing, use of proceeds thereof hereunder or other transaction contemplated by this Agreement Transactions will violate Anti-Corruption Laws or applicable Sanctions.
(pt) All payments due from The Borrower is not an Affected Financial Institution.
(u) The information included in each Beneficial Ownership Certification is true and correct in all respects.
(v) None of the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on Subsidiaries is an entity deemed to hold “plan assets” (within the financial statements meaning of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filedPlan Asset Regulations), and have paid all federalneither the execution, state and other Taxesdelivery nor performance of the transactions hereunder, assessmentsincluding the making of any Loan hereunder, fees and other governmental charges levied will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to Section 4975 of the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectCode.
Appears in 1 contract
Samples: Credit Agreement (Nisource Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower It is (i) a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction Commonwealth of Massachusetts and has all requisite power and authority, corporate or otherwise, to conduct its business, to own its properties and to execute and deliver, and to perform all of its organizationobligations under, this Agreement, the Notes and (ii) the other Loan Documents to which it is or is to be a party. The Borrower is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesqualification necessary.
(b) The execution, delivery and performance by the Borrower of each this Agreement, the Notes and other Loan Document Documents to which it is, is or is to become, be a party, are within the Borrower’s organizational powers, party have been duly authorized by all necessary organizational corporate action and do not contravene and will not require any consent or approval of its stockholders which has not been obtained, violate any provision of any law (i) including, without limitation, the Borrower’s organizational documentsPublic Utility Holding Company Act of 1935), rule, regulation (ii) law applicable including, without limitation, Regulations U and X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to the Borrower or its propertiesof the charter or by-laws of the Borrower, or (iii) result in a breach of or constitute a default under any contractual indenture or legal restriction binding on loan or affecting credit agreement or any other agreement, lease or instrument to which the Borrower is a party or by which it or its propertiesproperties may be bound or affected, or result in, or require, the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature (other than pursuant to the Collateral Assignments) upon or with respect to any properties now owned or hereafter acquired by the Borrower; and it is not in default in any material respect under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument.
(c) No authorization All authorizations, consents, approvals, licenses, exemptions from or approval filings or other action byregistrations with any court or governmental department, and no notice commission, board, bureau, agency or instrumentality which are or will be necessary to or filing with, any governmental authority or regulatory body is required for the due valid execution, delivery and or performance by (i) the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any , the Notes, the other Loan Document Documents to which it is, is or is to become, be a party and the Ancillary Agreements to which it is a party and (ii) each of NEP and XXXX of the Ancillary Agreements to which it is a party, except for have been duly obtained or made (including, without limitation, the 1978 SEC Order, the 1985 SEC Order, the 1995 SEC Order and the FERC Authorization, which has been duly obtainedSettlement), and is are in full force and effect.
(d) This Agreement constitutes, and the Notes and each of the other Loan Documents to which it is, is or is to becomebe a party when delivered hereunder will constitute, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower Fuel Purchase Contract, true and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, complete copies of each of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as consented to by the Banks, and, if and so long as the CMA Conversion Date shall not have occurred, is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no default under the Fuel Purchase Contract by any party thereto.
(f) The Capital Funds Agreement, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as consented to by the Banks, and, if and so long as the CMA Conversion Date shall not have occurred, is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no default under the Capital Funds Agreement by any party thereto.
(g) The Loan Agreement, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as consented to by the Banks, and, if and so long as the CMA Conversion Date shall not have occurred, is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no default under the Loan Agreement by any party thereto.
(h) The Partnership Agreement, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, and has not been, and (on or before the date of the initial Borrowing hereunder) will not be, amended or otherwise modified (except that the Borrower may amend, modify, renew or extend the term of the Partnership Agreement, provided that the terms of the Partnership Agreement as so amended, modified, renewed or extended, giving due consideration to the standards and practices of the oil and gas industry, are no less favorable to the Borrower than the Partnership Agreement as in effect on the date hereof). The Partnership Agreement is, and will remain, in full force and effect, subject to termination in accordance with its terms. The Partnership Agreement is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no material default under the Partnership Agreement, or under any other agreement evidencing a Hydrocarbon Property Venture, by any party thereto.
(i) The Capital Maintenance Agreement, true and complete copies of which have been furnished to the Banks, has been duly authorized, executed and delivered by all parties thereto, has not been amended or otherwise modified except as consented to by the Banks, and is in full force and effect and is binding upon and enforceable against all parties thereto in accordance with its terms. There exists no default under the Capital Maintenance Agreement by any party thereto.
(j) Except as outstanding on the date hereof under the Existing Agreement, there are no mortgages, deeds of trust, pledges, liens, security interests or other charges or encumbrances upon or with respect to any property or other interests of the Borrower other than as permitted under Section 5.02(a) hereof.
(k) Each of the orders referred to in Section 3.01(f), true and correct copies of which have been furnished to the Banks, has been duly and properly issued, has not been amended or otherwise modified except by orders referred to in Section 3.01(f), is in full force and effect in accordance with its terms.
(l) The NEP Assignment does now, and will at all times prior to the CMA Conversion Date, constitute a valid and perfected first priority security interest in and to the Collateral described therein, enforceable against all third parties in all jurisdictions, securing the payment of all obligations purported to be secured thereby; and all action required to perfect fully the security interest so constituted has been taken and completed.
(m) The XXXX Assignment does now, and will at all times prior to the CMA Conversion Date, constitute a valid and perfected first priority security interest in and to the Collateral described therein, enforceable against all third parties in all jurisdictions, securing the payment of all obligations purported to be secured thereby; and all action required to perfect fully the security interest so constituted has been taken and completed.
(n) The CMA Assignment does now, and will at all time hereafter, constitute a valid and perfected first priority security interest in and to the Collateral described therein, enforceable against all third parties in all jurisdictions, securing the payment of all obligations purported to be secured thereby; all action required to perfect fully the security interest so constituted has been taken and completed.
(o) The NEP Acknowledgment, when delivered hereunder, will have been duly authorized, executed and delivered by NEP, will not have been amended or otherwise modified and will at all times prior to the CMA Conversion Date, constitute the legal, valid and binding obligation of NEP enforceable against it in accordance with its terms.
(p) The XXXX Acknowledgment, when delivered hereunder, will have been duly authorized, executed and delivered by XXXX, will not have been amended or otherwise modified and will constitute the legal, valid and binding obligation of XXXX enforceable against it in accordance with its terms.
(q) The balance sheets of the Borrower, NEP and XXXX as at December 31, 1994 and the related statements of income and retained earnings for the fiscal years then ended, each Bankcertified by Coopers & Xxxxxxx, independent public accountants, copies of which have been furnished to the Banks, fairly present the consolidated financial condition condition, respectively, of the Borrower Borrower, NEP and its Subsidiaries XXXX as at such dates and the consolidated results of the operations operations, respectively, of the Borrower Borrower, NEP and its Subsidiaries XXXX for the periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotesgenerally accepted accounting principles applied on a consistent basis. Except as disclosed in the Disclosure Documents, since Since December 31, 2023, 1994 there has been no material adverse change in such financial condition or operations of the Borrower, NEP or XXXX.
(r) The Borrower does not have any Plans. No Termination Event has occurred, or is reasonably expected to occur, and no Prohibited Transaction has occurred, with respect to any Plans of the Borrower or any ERISA Affiliate of the Borrower.
(s) There are no actions, suits or proceedings pending or, to its knowledge, threatened against or affecting the Borrower or its properties before any court or governmental department, commission, board, bureau, agency or instrumentality which, if determined adversely, would have a material adverse effect on the financial condition or operations of the Borrower.
(f) . Except as disclosed in the Disclosure Documentsfinancial statements referred to in paragraph (q) above, there is are no actions, suits or proceedings pending or, to its knowledge, threatened against or threatened action affecting NEP, XXXX or proceeding affecting the Borrower or any of its Subsidiaries their respective properties before any courtcourt or governmental department, governmental commission, board, bureau, agency or arbitrator that could reasonably be expected instrumentality which, if determined adversely, would have an adverse effect on the ability of NEP or XXXX, as the case may be, to have a Material Adverse Effectperform and observe its Acknowledgment, the Capital Funds Agreement, the Loan Agreement, the Fuel Purchase Contract or the Capital Maintenance Agreement. There The Borrower has been no change material contingent liabilities, material liabilities for taxes, material unusual forward or long-term commitments or material unrealized or unanticipated losses from any unfavorable commitments, except as reflected in any matter disclosed the financial statements referred to in such filings that could reasonably be expected to result in such a Material Adverse Effectparagraph (q) above.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(ht) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System) and no part of the proceeds of any Extension of Credit Advance will be used to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the margin stock.
(u) No proceeds of each Extension of Credit, not more than 25% any Advance will be used to acquire any security in any transaction which is subject to Section 13 and 14 of the value Securities Exchange Act of 1934.
(v) Neither the assets business nor the properties of the Borrower and its Subsidiaries subject to or any Hydrocarbon Property Venture are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the restrictions of Section 5.02(apublic enemy or other casualty (whether or not covered by insurance), (c) materially and adversely affecting the business or (d) will consist properties or the operations of the Borrower or be represented by Xxxxxx Xxxxxsuch Hydrocarbon Property Venture, as the case may be, taken as a whole.
(iw) The Borrower has filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or provided adequate reserves for payment thereof, except that the Borrower may not have paid certain taxes being contested by it in good faith and by proper proceedings and for which proper reserves have been established.
(x) No information, exhibit or report furnished by the Borrower to the Agent or to the Banks in connection with the negotiation of this Agreement or pursuant to or in connection with the Loan Documents, including, without limitation, the Information Memorandum, contained any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
(y) All Hydrocarbon Properties (other than Post-1983 Hydrocarbon Properties) are entitled to the benefits of the Fuel Purchase Contract.
(z) The Borrower is not an “"investment company” or a company “controlled” by an “investment company” " within the meaning of ascribed to that term in the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower ---------------------------------------------- represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, this Fourth Amendment have been duly authorized by all necessary organizational corporate action and do not contravene and will not (i) the Borrower’s organizational documents, require any consent or approval of its shareholders;
(ii) law applicable violate any provisions of its articles of incorporation or by-laws; (iii) violate any provision of any law, rule, regulation (including without limitation, Regulation U and X), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to and binding upon the Borrower or its propertiesany Subsidiary; (iv) result in a breach of or constitute a default or require any consent under any indenture or loan or credit agreement or any other material agreement, lease or (iii) any contractual or legal restriction binding on or affecting instrument to which the Borrower or any Subsidiary is a party or by which it or its propertiesProperties may be bound; or
(v) result in, or require, the creation or imposition of any Lien upon or with respect to any of the Properties now owned or hereafter acquired by the Borrower.
(cb) No authorization authorization, consent, approval, order, license or approval permit from, or other action filing, registration or qualification with, or exemption by, and no notice to or filing with, any governmental authority or regulatory public body or authority, or any subdivision thereof, or any other Person, including without limitation, the California or Massachusetts Insurance Commissioner, is required for to authorize, or is required in connection with the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it isof, or is to becomethe legality, a partyvalidity, binding effect or enforceability of, this Fourth Amendment except for the FERC Authorization, which has such approvals as have been duly obtained, obtained and is are in full force and effect.
(dc) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, Fourth Amendment constitutes the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, except to any the extent that such enforcement may be limited by applicable bankruptcy, reorganization, rearrangement, moratorium or insolvency and other similar laws affecting creditors' rights generally the enforcement of creditors’ rights and remedies and to by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equity.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(gd) No event has occurred and is continuing that constitutes an Event of Default actions, suits or that would constitute an Event of Default but for the requirement that notice be given proceedings or time elapse or both.
investigations (hother than routine examinations performed by insurance regulatory authorities) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees andpending or, to the knowledge of the Borrower, its directors and agentsthreatened against or affecting the Borrower or any Subsidiary, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None or any Property of (a) any of them before any court, governmental agency or arbitrator, which if determined adversely to the Borrower, Borrower or any Subsidiary thereof would in any one case or any of their respective officers or employeesin the aggregate, or (b) materially adversely affect the financial condition, operations, Properties, business or, to the knowledge of the Borrower, any director prospects of the Borrower and its Subsidiaries taken as a whole or agent the ability of the Borrower to perform its obligations under the Credit Agreement, as amended by this Fourth Amendment.
(e) No information, exhibit or report furnished in writing by or on behalf of the Borrower or any Subsidiary that will act in any capacity officer or director of the Borrower to the Bank in connection with the negotiation of, or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) pursuant to the extent that terms of, this Fourth Amendment contained when made any material misstatement of fact or omitted to state a material fact necessary to make the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectstatements contained therein not misleading.
Appears in 1 contract
Samples: Credit Agreement (Centris Group Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit Term Loans under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 20232021, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, 2022 and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 20242022, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232021, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit Term Loan will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of CreditTerm Loan, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank Agent or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(r) The Borrower does not own any real or personal property or other facilities in the State of Arkansas, except for an undivided twenty-five percent ownership interest in the Independence Steam Electric Station at Newark, Arkansas, and the Borrower does not maintain any service territory or serve any retail customers in the State of Arkansas.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Entergy Mississippi, LLC)
Representations and Warranties of the Borrower. The Borrower and PBI each represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower and PBI of each Loan Document this Amendment and the other Credit Documents, as amended hereby, to which it is, is or is to become, be a party, are within the Borrower’s organizational its corporate powers, have been duly authorized by all necessary organizational corporate action and do not contravene (i) contravene the Borrower’s organizational documents's or PBI's charter or bylaws, (ii) law applicable to the Borrower violate any law, rule or its propertiesregulation, or (iii) any contractual order, writ, judgment, injunction, decree, determination or legal restriction award, binding on or affecting PBI, the Borrower or its any of their respective Subsidiaries or any of their properties, (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 PBI, the Borrower, any of their respective Subsidiaries or any of their properties or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of PBI, the Borrower or any of their respective Subsidiaries.
(cb) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and or performance by the Borrower and PBI of this Agreement (including obtaining any Extensions of Credit under this Agreement) Amendment or any of the other Loan Document Credit Documents, as amended hereby, to which it is, is or is to become, be a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(dc) This Agreement and the other Loan Documents to which it is, or is to become, a party have Amendment has been or will be (as the case may be) duly executed and delivered by itthe Borrower and PBI. This Amendment and each of the other Credit Documents, and this Agreement isas amended hereby, and upon execution and delivery thereof each other Loan Document will be, to which the Borrower or PBI is a party is the legal, valid and binding obligation of the Borrower and PBI, enforceable against the Borrower and PBI in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ed) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, suit, investigation, litigation or proceeding affecting PBI, the Borrower or any of its their respective Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably be expected likely to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default Effect or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither purports to affect the Borrower nor any legality, validity or enforceability of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof this Amendment or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of other Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA AffiliateDocuments, as applicable, in accordance with GAAPamended hereby.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower Effective as of the Closing Date, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the -------- following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) The Borrower It is (i) a national banking association and is duly organized, organized and validly existing and in good standing under the laws of the jurisdiction United States of America and has the power and authority to enter into and perform its organization, obligations under the Trust Agreement and (iiassuming due authorization, execution and delivery of the Trust Agreement by the Holders) duly qualified has the corporate and trust power and authority to do business act as a foreign organization in the Owner Trustee and to enter into and perform the obligations under each jurisdiction in of the other Operative Agreements to which the nature of the business conducted Trust Company or the property ownedOwner Trustee, operated as the case may be, is or leased will be a party and each other agreement, instrument and document to be executed and delivered by it requires on or before the Closing Date in connection with or as contemplated by each such qualificationOperative Agreement to which the Trust Company or the Owner Trustee, except where failure to so qualify would not materially adversely affect its businessas the case may be, condition (financial is or otherwise), operations or properties.will be a party;
(b) The execution, delivery and performance by the Borrower of each Loan Document Operative Agreement to which it is, is or is to become, will be a party, are within either in its individual capacity or (assuming due authorization, execution and delivery of the Borrower’s organizational powersTrust Agreement by the Holders) as the Owner Trustee, have as the case may be, has been duly authorized by all necessary organizational action on its part and do not contravene neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby, nor compliance by it with any of the terms and provisions thereof (i) the Borrower’s organizational documentsdoes or will require any approval or consent of any trustee or holders of any of its indebtedness or obligations, (ii) law applicable to does or will contravene any Legal Requirement, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the Borrower creation of any Lien upon any of its property under, (A) its charter or its propertiesby-laws, or (iiiB) any contractual indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or legal restriction binding on credit agreement or affecting the Borrower other agreement or instrument to which it is a party or by which it or its properties.properties may be bound or affected, which contravention, breach, default or Lien under clause (B) would materially and adversely affect its ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or (iv) does or will require any Governmental Action by any Governmental Authority;
(c) No authorization or approval or other action byThe Trust Agreement and, and no notice to or filing with, any governmental authority or regulatory body assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower Holders, each other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by the Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower Trust Company or the Owner Trustee, as the case may be, in accordance with its terms, subject, howeverthe terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party, either in its individual capacity or as the Owner Trustee, before any applicable bankruptcyGovernmental Authority that, reorganizationif adversely determined, rearrangementwould materially and adversely affect its ability, moratorium in its individual capacity or similar laws affecting generally as the enforcement Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of creditors’ rights and remedies and any of the Operative Agreements to general principles of equity (regardless of whether enforceability which it is considered in or will become a proceeding in equity or at law).party;
(e) The consolidated financial statements It has not assigned or transferred any of its right, title or interest in or under the Borrower and Lease, or its Subsidiaries as of December 31interest in any Property or any portion thereof, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, except in accordance with GAAPthe Operative Agreements;
(f) No Default of Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) [Reserved];
(h) Neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, subjector in any similar security relating to a Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such financial statements action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the provisions of Section 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The Owner Trustee's principal place of business, chief executive office, location for purposes of the fiscal quarter ended March 31UCC, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in office where the Disclosure Documentsdocuments, since December 31accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 00 Xxxxx Xxxx Xxxxxx, 2023Xxxx Xxxx Xxxx, there has been no material adverse change in the financial condition or operations of the Borrower.Xxxx 00000;
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(hj) The Borrower Owner Trustee is not engaged in principally in, and does not have as one (1) of its important activities, the business of extending credit for the purpose of purchasing or carrying Margin Stockany margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of any Extension of Credit the Loans or the Holder Advances will be used by it to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying such margin stock or for any purpose that violates, or is inconsistent with, the proceeds provisions of each Extension of CreditRegulation T, not more than 25% U, or X of the value Board of Governors of the assets Federal Reserve System of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.United States;
(ik) The Borrower Owner Trustee is not an “"investment company” " or a company “controlled” controlled by an “"investment company” " within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.Act;
(l) Except as could not reasonably be expected Each Property is free and clear of all Lessor Liens attributable to result the Owner Trustee in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.individual capacity; and
(m) The reportsOwner Trustee, financial statements in its trust capacity, is a party to no documents, instruments or agreements other than the Operative Agreements to which it is a party and any other written information furnished documents delivered by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or Owner Trustee in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed Operative Agreements. Effective as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statementsClosing Date, the Borrower Owner Trustee represents only and warrants that such information was prepared in good faith based upon assumptions each Property is free and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some clear of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedall Lessor Liens.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Each of the Loan Parties and the Subsidiaries of the Borrower is (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, and (ii) duly has the requisite power and authority to own its property and assets and to carry on its business as now conducted, (iii) is qualified to do business as a foreign organization in each every jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires where such qualificationqualification is required, except where the failure so to so qualify would not materially adversely affect result in a Material Adverse Effect, (iv) in the case of each of the Loan Parties, has the corporate power and authority to execute, deliver and perform its businessobligations under each Loan Document to which it is or is to be a party and each other agreement or instrument contemplated thereby to which it is or is to be a party and (v) in the case of the Borrower, condition (financial or otherwise), operations or propertieshas the corporate power and authority to borrow under this Agreement.
(b) The execution, delivery and performance by each of the Borrower Loan Parties of each Loan Document to which it is, is or is to become, be a party, party and the consummation of the transactions contemplated thereby are within the Borrowersuch Loan Party’s organizational corporate powers, have been duly authorized by all necessary organizational corporate action and, if required, stockholder action, and do not contravene (i) contravene the charter or other constitutive documents or by-laws of such Loan Party or any Subsidiary of the Borrower’s organizational documents, (ii) violate any law applicable or order of any Governmental Authority or any provision of any indenture, agreement or other instrument to which any Loan Party or any Subsidiary of the Borrower is a party or its propertiesby which any of them or any of their property is or may be bound or affected, or (iii) conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any contractual such indenture, agreement or legal restriction binding on other instrument or affecting (iv) result in the Borrower creation or its propertiesimposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by any Loan Partyor any Subsidiary of the Borrower.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority is required for the due execution, delivery and performance by the Borrower any Loan Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) , the Notes or any other Loan Document to which it is, is or is to become, be a party, or for the consummation of the transactions contemplated hereby and thereby, except for the FERC Authorizationsuch authorizations, which has approvals, actions, notices or filings that have been duly obtained, made or obtained and is are in full force and effect.
(d) This Agreement has been, and each of the Notes and each other Loan Documents to which it isDocument when delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each of the Loan Parties party thereto. This Agreement is, and upon execution each of the Notes and delivery thereof each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each of the Borrower Loan Parties party thereto enforceable against the Borrower such Loan Party in accordance with its terms, their respective terms (subject, howeveras to the enforcement of remedies, to any applicable bankruptcy, reorganization, rearrangementinsolvency, moratorium or and similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at lawgenerally).
(ei) The consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of at December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP2002, and the consolidated financial related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such dateFiscal Year then ended, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such dateall audited and certified by Deloitte & Touche LLP, as filed with the SECindependent public accountants, copies of each of which have been furnished to each BankLender, fairly present the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments GAAP consistently applied. Such balance sheets and the absence of detailed footnotes. Except as disclosed in the Disclosure Documentsnotes thereto disclose all material liabilities, since December 31direct or contingent, 2023, there has been no material adverse change in the financial condition or operations of the BorrowerBorrower and its Subsidiaries on a Consolidated basis as of the dates thereof.
(f) There has been no Material Adverse Change since December 31, 2002.
(g) Each of the Borrower and its Material Subsidiaries has good and marketable title to, or valid leasehold interests in, all their material properties and assets, except for such properties as are no longer used or useful in the conduct of their businesses or as have been disposed of in the ordinary course of business and except for minor defects in title that do not interfere with the ability of the Borrower or any of its Material Subsidiaries to conduct its businesses as currently conducted. All such properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 5.02(b).
(h) Except as disclosed set forth in the Disclosure Documentsfinancial statements referred to in subsection (e) of this Section 4.01, there is no pending or or, to the knowledge of the Borrower, threatened action action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Material Subsidiaries before or any courtbusiness, governmental agency property or arbitrator that rights of the Borrower or any Material Subsidiary (i) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, could reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect or (ii) that purports to affect the legality, validity or enforceability of this Agreement, any Note or any other Loan Document or the consummation of the transactions contemplated hereby or thereby. Neither the Borrower nor any of its Subsidiaries is in violation of any law, rule or regulation, or in default with respect to any judgement, writ, injunction or decree of any Governmental Authority, where such violation or default could result in a Material Adverse Effect. There .
(i) Neither the Borrower nor any of its Subsidiaries is a party to any agreement or instrument or subject to any corporate restriction that has been no change in any matter disclosed in such filings that resulted or could reasonably be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Debt, or any other material agreement or instrument to which it is a party or by which it or any of its properties or assets are or may be bound, where such default could result in a Material Adverse Effect.
(gj) No event has occurred and Neither the Borrower nor any of its Subsidiaries is continuing that constitutes an Event engaged principally, or as one of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no . No part of the proceeds of any Extension of Credit Advance will be used used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose or (ii) for any Margin Stock. After applying purpose which entails a violation of, or which is inconsistent with, the proceeds of each Extension of Credit, not more than 25% provisions of the value Regulations of the assets Board of Governors of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a)Federal Reserve System, (c) including Regulation T, U or (d) will consist of or be represented by Xxxxxx XxxxxX thereof.
(k) Neither the Borrower nor any of its Subsidiaries is (i) The Borrower is not an “investment company” ”, as defined in, or a company “controlled” by an “investment company” within the meaning of subject to regulation under, the Investment Company Act of 1940, as amended.
amended or (jii) Except a “holding company” as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurreddefined in, or is reasonably expected subject to occurregulation under, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA PlanPublic Utility Holding Company Act of 1935, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effectas amended.
(l) Except The Borrower will use the proceeds of the Advances only as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, commercial paper backstop and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedfor lawful general corporate purposes.
(m) The reportseach of the Borrower and its Subsidiaries has filed or caused to be filed all federal, state and local tax returns required to have been filed by it and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, except taxes that are otherwise permitted in accordance with the provisions of Section 5.01(b).
(n) No information, report, financial statements and other written information statement, exhibit or schedule prepared or furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank the Documentation Agent, the Arranger or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as negotiation of any date Loan Document or included therein or delivered pursuant thereto contained, contains or will contain any material misstatement of determination with the SEC under the Securities Exchange Act of 1934fact or omitted, as amended, do not contain and omits or will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were were, are or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respectsmisleading.
(o) The Each of the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are is in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None respects with the applicable provisions of (a) ERISA and the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) regulations and published interpretations thereunder that are applicable to the knowledge Borrower and its Subsidiaries. As of the Borrowerdate hereof, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from no Reportable Event has occurred as to which the Borrower or any of its ERISA Affiliates on account of wages Subsidiaries was required to file a report with the PBGC, and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAPno material unfunded vested liabilities exist under any Plan.
(qp) The Each of the Borrower and its Subsidiaries have filed is in substantial compliance with all applicable federal, state and other Tax returns local environmental laws, regulations and reports ordinances governing its business, properties or assets with respect to discharges into the ground and surface water, emissions into the ambient air and generation, storage, transportation and disposal of waste materials or process by-products, except such noncompliances as are not likely to have a Material Adverse Effect. All licenses, permits or registrations required to be filed, for the business of the Borrower and have paid all its Subsidiaries under any federal, state or local environmental laws, regulations or ordinances have been secured, and other Taxes, assessments, fees the Borrower and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payableeach Subsidiary are in substantial compliance therewith, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP such licenses, permits or (b) to the extent that registrations the failure to do so could not, individually secure or in the aggregate, reasonably be expected to comply therewith are not likely to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is Each Credit Party and each of its Subsidiaries (i) is a Person (other than a natural person and with respect to the Borrower only, is a corporation, limited liability company or limited partnership) duly organized, validly existing and (to the extent applicable in the jurisdiction of its formation) in good standing under the laws of the jurisdiction of its organizationformation, and (ii) is duly qualified and in good standing (to the extent such concept exists) under the laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business as currently conducted requires such qualification and (iii) has all requisite corporate, limited liability company, partnership or other organizational power and authority and has all requisite Governmental Authorizations, in each case, to own or lease and operate its properties and to carry on its business as currently conducted; except in each case referred to in clause (i) (other than with respect to the Borrower), (ii) or (iii) to the extent that the failure to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its businessreasonably be expected to have, condition (financial individually or otherwise)in the aggregate, operations or propertiesa Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower each Credit Party of each Loan Credit Document to which it isis a party, or and the consummation of the financing transactions evidenced by each Credit Document to which it is to become, a party, are within the Borrowersuch Credit Party’s corporate, limited liability company, limited partnership or other organizational powers, have been duly authorized by all necessary corporate, limited liability company, limited partnership or other organizational action action, and do not contravene (i) the Borrowercontravene such Credit Party’s organizational charter, bylaws, limited liability company agreement, partnership agreement or other constituent documents, (ii) law applicable violate any law, rule, regulation (including, without limitation, Regulation X of the Board), order, writ, judgment, injunction, decree, determination or award of any Governmental Authority to which such Person is a party or subject, (iii) conflict with or result in the Borrower breach of, or constitute a default or require any payment to be made under, any loan agreement, indenture, mortgage, deed of trust, material lease or other material contract or instrument binding on any Credit Party, any of its propertiesSubsidiaries or any of their properties or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Credit Party or any of its Subsidiaries, except with respect to any violation, conflict, breach, default or requirement referred to in clauses (ii) or (iii) any contractual to the extent that such violation, conflict, breach, default or legal restriction binding on requirement would not reasonably be expected to have, individually or affecting in the Borrower or its propertiesaggregate, a Material Adverse Effect.
(c) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other third party is required for the due execution, delivery and performance by the Borrower by, or enforcement against, any Credit Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is a party or is to become, a partyany extension of credit hereunder, except for (i) with respect to the FERC Authorizationtransfer, which has directly or indirectly, of the Equity Interests of any Broker-Dealer Subsidiary, giving all necessary notices to third parties and obtaining all necessary Governmental Authorizations in connection with such exercise of remedies or transfer including, without limitation, to the extent required under the Financial Industry Regulatory Authority’s NASD Rule 1017 or any similar rule under the Commodities Exchange Act, (ii) the Governmental Authorizations, notices and filings that have been duly obtained, taken, given or made, as applicable, and is are in full force and effecteffect and (iii) those Governmental Authorizations, notices and filings the failure of which to obtain or make would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(d) This Agreement has been, and the each other Loan Documents to which it isCredit Document when delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Credit Party party thereto. This Agreement is, and upon execution and delivery thereof each other Loan Credit Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Credit Party party thereto, enforceable against the Borrower such Credit Party in accordance with its terms, subject, however, terms subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting generally the enforcement of creditors’ rights generally and remedies and subject to general principles of equity (equity, regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated Except as set forth in the financial statements referred to in Section 3.01(f), there is no action, suit, investigation, litigation or proceeding affecting any Credit Party or any of its Subsidiaries pending or, to the knowledge of any Credit Party, threatened in writing before any Governmental Authority or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Credit Document or the consummation of the financing transactions evidenced hereby and by the other Credit Documents.
(f) The audited Consolidated balance sheet of the Borrower and its Subsidiaries as of December 31at September 30, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP2017, and the consolidated financial statements related audited Consolidated statement of income and audited Consolidated statement of cash flows of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter Fiscal Year then ended on such date(including the related schedules and notes thereto), as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such dateaccompanied by an unqualified opinion of Ernst & Young LLP, as filed with the SECindependent public accountants, copies of each of which have been furnished made available to each BankLender, fairly present in all material respects the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates date and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAPGAAP applied on a consistent basis (except as approved by the aforementioned firm of accountants and disclosed therein). The unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, subject2017, in and the case related unaudited Consolidated statement of such financial statements income and unaudited Consolidated statement of cash flows of the Borrower and its Subsidiaries for the fiscal quarter then ended March 31, 2024, (including the related schedules and notes thereto) fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of operations of the Borrower and its Subsidiaries for the period ended on such date (subject to year-normal year end audit adjustments and the absence of detailed footnotes), all in accordance with GAAP applied on a consistent basis (except as approved by the aforementioned firm of accountants and disclosed therein). Except as disclosed in the Disclosure DocumentsSince September 30, since December 312017, 2023no event, there change or condition has been no material adverse change in the financial condition occurred and is continuing that has had, or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could would reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such have, a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both[Reserved].
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% Any of the value reports, financial statements, certificates or other written information, other than forward-looking statements (including any projections) and information of a general economic or general industry nature, made available to the assets Administrative Agent or any Lender by the Borrower or any representative of the Borrower and its Subsidiaries subject in connection with the transactions contemplated hereby on or prior to the restrictions date that was one Business Day prior to the Effective Date, when taken as a whole, together with all information contained in publicly available regular or periodic reports filed by the Borrower with the SEC during the period from September 30, 2017 to and including the date that was one Business Day prior to the Effective Date, is (as of Section 5.02(a)the Effective Date) correct in all material respects and does not (as of the Effective Date) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, (c) or (d) will consist taken as a whole, not materially misleading in light of or be represented by Xxxxxx Xxxxxthe circumstances under which such statements were made.
(i) The Borrower No proceeds of any Loan will be used for any purpose that violates the provisions of Regulation T, U or X of the Board, as in effect from time to time.
(j) No Credit Party is, nor is not any Credit Party required to be, registered as an “investment company” or a company “controlled” by an “investment company” within the meaning of under the Investment Company Act of 1940, as amended.
(jk) Except as could not reasonably be expected to result in a Material Adverse Effect, no (i) No ERISA Termination Event has occurred, occurred or is reasonably expected to occur, occur with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of Plan which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is Each Credit Party and each of its Subsidiaries (i) is a Person (other than a natural person and with respect to the Borrower only, is a corporation, limited liability company or limited partnership) duly organized, validly existing and (to the extent applicable in the jurisdiction of its formation) in good standing under the laws of the jurisdiction of its organizationformation, and (ii) is duly qualified and in good standing (to the extent such concept exists) under the laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business as currently conducted requires such qualification and (iii) has all requisite corporate, limited liability company, partnership or other organizational power and authority and has all requisite Governmental Authorizations, in each case, to own or lease and operate its properties and to carry on its business as currently conducted; except in each case referred to in clause (i) (other than with respect to the Borrower), (ii) or (iii) to the extent that the failure to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its businessreasonably be expected to have, condition (financial individually or otherwise)in the aggregate, operations or propertiesa Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower each Credit Party of each Loan Credit Document to which it isis a party, or and the consummation of the financing transactions evidenced by each Credit Document to which it is to become, a party, are within the Borrowersuch Credit Party’s corporate, limited liability company, limited partnership or other organizational powers, have been duly authorized by all necessary corporate, limited liability company, limited partnership or other organizational action action, and do not contravene (i) the Borrowercontravene such Credit Party’s organizational charter, bylaws, limited liability company agreement, partnership agreement or other constituent documents, (ii) law applicable violate any law, rule, regulation (including, without limitation, Regulation X of the Board), order, writ, judgment, injunction, decree, determination or award of any Governmental Authority to which such Person is a party or subject, (iii) conflict with or result in the Borrower breach of, or constitute a default or require any payment to be made under, any loan agreement, indenture, mortgage, deed of trust, material lease or other material contract or instrument binding on any Credit Party, any of its propertiesSubsidiaries or any of their properties or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Credit Party or any of its Subsidiaries, except with respect to any violation, conflict, breach, default or requirement referred to in clauses (ii) or (iii) any contractual to the extent that such violation, conflict, breach, default or legal restriction binding on requirement would not reasonably be expected to have, individually or affecting in the Borrower or its propertiesaggregate, a Material Adverse Effect.
(c) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other third party is required for the due execution, delivery and performance by the Borrower by, or enforcement against, any Credit Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is a party or is to become, a partyany extension of credit hereunder, except for (i) with respect to the FERC Authorizationtransfer, which has directly or indirectly, of the Equity Interests of any Broker-Dealer Subsidiary, giving all necessary notices to third parties and obtaining all necessary Governmental Authorizations in connection with such exercise of remedies or transfer including, without limitation, to the extent required under the Financial Industry Regulatory Authority’s NASD Rule 1017 or any similar rule under the Commodities Exchange Act, (ii) the Governmental Authorizations, notices and filings that have been duly obtained, taken, given or made, as applicable, and is are in full force and effecteffect and (iii) those Governmental Authorizations, notices and filings the failure of which to obtain or make would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(d) This Agreement has been, and the each other Loan Documents to which it isCredit Document when delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Credit Party party thereto. This Agreement is, and upon execution and delivery thereof each other Loan Credit Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Credit Party party thereto, enforceable against the Borrower such Credit Party in accordance with its terms, subject, however, terms subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting generally the enforcement of creditors’ rights generally and remedies and subject to general principles of equity (equity, regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated Except as set forth in the financial statements referred to in Section 3.01(f), there is no action, suit, investigation, litigation or proceeding affecting any Credit Party or any of its Subsidiaries pending or, to the knowledge of any Credit Party, threatened in writing before any Governmental Authority or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Credit Document or the consummation of the financing transactions evidenced hereby and by the other Credit Documents.
(f) The audited Consolidated balance sheet of the Borrower and its Subsidiaries as of December 31at September 30, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP2016, and the consolidated financial statements related audited Consolidated statement of income and audited Consolidated statement of cash flows of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter Fiscal Year then ended on such date(including the related schedules and notes thereto), as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such dateaccompanied by an unqualified opinion of Ernst & Young LLP, as filed with the SECindependent public accountants, copies of each of which have been furnished made available to each BankLender, fairly present in all material respects the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates date and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAPGAAP applied on a consistent basis (except as approved by the aforementioned firm of accountants and disclosed therein). The unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, subject2016, in and the case related unaudited Consolidated statement of such financial statements income and unaudited Consolidated statement of cash flows of the Borrower and its Subsidiaries for the fiscal quarter then ended March 31, 2024, (including the related schedules and notes thereto) fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of operations of the Borrower and its Subsidiaries for the period ended on such date (subject to year-normal year end audit adjustments and the absence of detailed footnotes), all in accordance with GAAP applied on a consistent basis (except as approved by the aforementioned firm of accountants and disclosed therein). Except as disclosed in the Disclosure DocumentsSince September 30, since December 312016, 2023no event, there change or condition has been no material adverse change in the financial condition occurred and is continuing that has had, or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could would reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such have, a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both[Reserved].
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, Information Memorandum and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value other reports, financial statements, certificates or other written information, other than forward-looking statements (including any projections) and information of a general economic or general industry nature, made available to the assets Administrative Agent or any Lender by the Borrower or any representative of the Borrower and its Subsidiaries subject in connection with the transactions contemplated hereby on or prior to the restrictions date that was one Business Day prior to the Effective Date, when taken as a whole, together with all information contained in publicly available regular or periodic reports filed by the Borrower with the SEC during the period from September 30, 2016 to and including the date that was one Business Day prior to the Effective Date, is (as of Section 5.02(a)the Effective Date) correct in all material respects and does not (as of the Effective Date) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, (c) or (d) will consist taken as a whole, not materially misleading in light of or be represented by Xxxxxx Xxxxxthe circumstances under which such statements were made.
(i) The Borrower No proceeds of any Loan will be used for any purpose that violates the provisions of Regulation T, U or X of the Board, as in effect from time to time.
(j) No Credit Party is, nor is not any Credit Party required to be, registered as an “investment company” or a company “controlled” by an “investment company” within the meaning of under the Investment Company Act of 1940, as amended.
(ji) Except as No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan which could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(kii) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to for each ERISA Single Employer Plan, copies of which have been filed with the Internal Revenue Service IRS and furnished will be made available to the BanksLenders upon a written request to the Borrower, is complete and accurate in all material respects and fairly presents the funding status of such ERISA Plan, and since Single Employer Plan as of the date specified in such filing.
(iii) Neither any Credit Party nor any ERISA Affiliate has incurred or to the knowledge of such Schedule B there any Credit Party or ERISA Affiliate, is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which could reasonably be expected to result in a Material Adverse Effect.
(iv) Neither any Credit Party nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan has been terminated, within the meaning of Title IV of ERISA, and, to the knowledge of any Credit Party or ERISA Affiliate, no change such Multiemployer Plan is reasonably expected to be terminated, within the meaning of Title IV of ERISA, which termination in such funding status that could either case would reasonably be expected to result in a Material Adverse Effect.
(l) Except Except, in each case, as could would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) the operations and properties of each Credit Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits; and (ii) none of the Credit Parties nor any of their Subsidiaries has become subject to, has received notice of any claim with respect to, or knows of any basis for any Environmental Liability.
(m) Each Credit Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all federal and state and other material Tax returns required to be filed by it and has paid all Taxes due, except (i) Taxes that are being contested in good faith by appropriate proceedings and for which such Credit Party or such Subsidiary, as applicable, has set aside on its books adequate reserves or (ii) to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Corruption/Anti-Money Laundering Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees anddirectors, and to the knowledge of the Borrower, Borrower its directors employees and agents, are in compliance with Anti-Corruption Corruption/Anti-Money Laundering Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, hereby is a Sanctioned Person. No Borrowing or Letter of Credit or Loan, use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Corruption/Anti-Money Laundering Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as followsto the Lenders that:
(a) The Borrower is (i) duly organizedTo the Borrower’s Knowledge, validly existing and in good standing no Default or Event of Default exists under the laws Loan Agreement as of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesdate hereof.
(b) The execution and delivery of this Amendment by each Loan Party will result in valid and legally binding obligations of such entity enforceable against it in accordance with the terms and provisions hereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.
(c) The execution, delivery and performance by the Borrower and the other Loan Parties of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have this Amendment has been duly authorized by all necessary corporate or other organizational action action, and do not contravene and will not: (i) contravene the Borrowerterms of any of such Person’s organizational documents, ; (ii) law applicable to conflict with or result in any breach or contravention of, or result in or require the creation of any Lien, or require any payment by the Borrower or its properties, or to be made under (iiiA) any contractual or legal restriction binding on obligation to which the Borrower is a party or affecting the Borrower or the properties of the Borrower or any of its properties.
subsidiaries or (cB) any order, injunction, writ or decree of any governmental authority or any arbitral award to which the Borrower or any material portion of its property is subject; or (iii) violate any applicable law in any material respect. No authorization or approval approval, consent, exemption, authorization, or other action by, and no or notice to to, or filing with, any governmental authority or regulatory body any other Person is necessary or required for on the due part of the Borrower or the other Loan Parties in connection with the execution, delivery and or performance by by, or enforcement against the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any the other Loan Document to which it isParties of, this Amendment, other than the filing of any uniform commercial code financing statements or is to become, a party, except for the FERC Authorization, which has been duly obtained, amendments thereto and is in full force and effectany filings required under federal securities laws.
(d) This Each of the representations and warranties made by any Loan Party set forth in Article IV of the Loan Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each in any other Loan Document will be, the legal, valid are true and binding obligation correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Occurrence” are true and correct in all respects) on and as of the Borrower enforceable against Third Amendment Effective Date with the Borrower in accordance with its termssame effect as though made on and as of such date, subject, however, except to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights extent such representations and remedies and warranties expressly relate to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)an earlier date.
(e) The consolidated financial statements Loan Documents (as such term is modified by this Amendment) constitute First Lien Loan Documents under and are entitled to the benefits of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the BorrowerIntercreditor Agreement.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) : The Borrower is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization corporation in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, business, properties, or properties.
(b) prospects. The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, this Agreement are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) the Borrower’s organizational documents's charter or by-laws, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) . No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, following (each of which has been duly filed or obtained, and is final and in full force and effect.
): (di) the filing of the Declaration on Form U-1 and amendments and exhibits thereto in File No. 70-9749 and (ii) the SEC Order. This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ ' rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) . The consolidated financial statements of the Borrower and its Subsidiaries subsidiaries as of December 31, 2023, 2001 and for the year ended on such date, as set forth in the Borrower’s 's Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries subsidiaries as of March 31, 20242002, and for the fiscal quarter three-month period ended on such date, as date set forth in the Borrower’s 's Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such statements dated March 31, 2002, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotesgenerally accepted accounting principles consistently applied. Except as disclosed in the Disclosure DocumentsBorrower's Quarterly Report on Form 10-Q for the fiscal period ended March 31, 2002, since December 31, 20232001, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) . Except as disclosed in the Disclosure DocumentsBorrower's Annual Report on Form 10-K for the fiscal year ended December 31, 2001, and the Borrower's Quarterly Report on Form 10-Q for the period ended March 31, 2002, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries subsidiaries before any court, governmental agency or arbitrator that that, if determined adversely, could reasonably be expected to have a Material Adverse Effectmaterial adverse effect upon the condition (financial or otherwise), operations, business, properties or prospects of the Borrower or on its ability to perform its obligations under this Agreement, or that purports to affect the legality, validity, binding effect or enforceability of this Agreement. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) material adverse effect. No event has occurred and is continuing that constitutes a Prepayment Event or an Event of Default or that would constitute a Prepayment Event or an Event of Default but for the requirement that notice be given or time elapse or both.
(h) . The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be is, on the date hereof, represented by Xxxxxx Xxxxx.
margin stock (i) within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). The Borrower is not an “"investment company” " or a company “"controlled” " by an “"investment company” " within the meaning of the Investment Company Act of 1940, as amended.
(j) Except , or an "investment advisor" within the meaning of the Investment Company Act of 1940, as could not reasonably be expected to result in amended. The Borrower is a Material Adverse Effect"holding company" as that term is defined in, no and is registered under, the Public Utility Holding Company Act of 1935. No ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
Plan that may materially and adversely affect the condition (k) financial or otherwise), operations, business, properties or prospects of the Borrower and its subsidiaries, taken as a whole. Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no material adverse change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the status. The Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedPlan.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Each of the Borrower and its Subsidiaries is (i) an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualificationqualification necessary, except where such failure to so qualify would not materially adversely affect result in a Material Adverse Effect. Each of the Borrower and its business, condition Subsidiaries has all requisite corporate (financial or otherwise), operations other applicable) powers and authority to own or propertieslease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower and, where applicable, each Subsidiary of this Agreement, each Loan Document to which it is, or is to become, a party, party are within the Borrower’s organizational or such Subsidiary’s corporate (or other applicable) powers, have been duly authorized by all necessary organizational action and corporate (or other applicable) action, do not contravene (i) the Borrower’s organizational documentsor such Subsidiary’s certificate of incorporation (or other applicable formation document or operating agreement), (ii) law any law, rule or regulation applicable to the Borrower or its properties, such Subsidiary or (iii) any contractual or legal restriction binding on or affecting the Borrower or such Subsidiary, and will not result in or require the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower or its propertiesSubsidiaries, except as provided in this Agreement and any other the Loan Document.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Action is required for the due execution, execution or delivery and performance by the Borrower or its Subsidiaries of this Agreement (including obtaining any Extensions of Credit under this Agreement) or , any other Loan Document to which it is, is a party or is to become, a party, except for the FERC Authorizationperformance by the Borrower or its Subsidiaries of its obligations under this Agreement, any other Loan Document to which has it is a party other than those which have previously been duly obtained, and is are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, threatened appeal or other proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or appeal with respect thereto have expired.
(d) This Agreement and the other each Loan Documents Document to which it is, the Borrower or any Subsidiary is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower or Subsidiary party thereto, enforceable against the Borrower or applicable Subsidiary in accordance with its terms, subjectsubject to the effect of bankruptcy, however, to any applicable bankruptcyinsolvency, reorganization, rearrangementfraudulent conveyance, moratorium or and other similar laws of general application affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)creditors generally.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or or, to the Borrower’s knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have has a Material Adverse Effect. There has been no change reasonable possibility of resulting in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2012, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Since December 31, 2012, there has been no Material Adverse Effect, or material adverse change in the facts and information regarding such entities as represented to the Restatement Effective Date.
(g) No event has occurred The making of Loans and is continuing that constitutes an Event the use of Default or that would constitute an Event the proceeds thereof will comply with all provisions of Default but for the requirement that notice be given or time elapse or bothApplicable Law in all material respects.
(h) The Neither the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of nor any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Subsidiary of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Term Loan Credit Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) a. The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) b. The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties, in the case of clauses (ii) and (iii) above, except where such failure would result in a Material Adverse Effect.
(c) c. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) d. This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) e. The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 20232020, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31June 30, 20242021, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31June 30, 20242021, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232020, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) f. Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothg. [reserved].
(h) h. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) i. The Borrower is not required to register as an “investment company” or a company “controlled” by an “investment company” within the meaning of under the Investment Company Act of 1940, as amended.
(j) j. Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.k. [reserved]
(l) l. Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedPlan.
(m) The reports, financial statements and other written m. All information heretofore furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to for purposes of or in connection with any Loan Document or any transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Loan Documents Borrower to the Administrative Agent, any LC Issuing Bank or any Lender will be, true and accurate in all material respects on the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed date as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, which such information is stated or certified in the light of the circumstances under which they were such information was provided (as modified or will be madesupplemented by other information so furnished, not misleading in any material respectwhen taken together as a whole and with the Disclosure Documents); provided that, with respect to projections and forward looking statementsprojected financial information, the Borrower represents only that such information was prepared in good faith based upon on assumptions and estimates believed to be reasonable at the time made time, it being recognized by the Lenders and notes LC Issuing Banks that whether or not such projections or forward looking statements are in fact achieved will depend upon as to future events some of which are not within to be viewed as facts and that actual results during the control period or periods covered by any such projections may differ from the projected results. The Borrower has disclosed to the Lenders and LC Issuing Banks, in the Disclosure Documents or otherwise in writing, any and all facts specific to the Borrower and its Subsidiaries and known as of the date hereof to a responsible officer of the Borrower that could reasonably be expected to result in a Material Adverse Effect, which materially and adversely affect or may affect (to the extent the Borrower can now reasonably foresee), the business, operations or financial condition of the Borrower and actual results may vary from its Consolidated Subsidiaries, taken as a whole, or the projections and such variations may be material and, accordingly, ability of the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedto perform its obligations under the Loan Documents.
(n) n. As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) o. The Borrower has implemented and maintains in effect policies and procedures reasonably designed to ensure promote compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and . None of (a) the Borrower, its Subsidiaries and their respective officers and employees andBorrower or any Subsidiary or, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower Borrower, or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have are in compliance in all material respects with Anti-Corruption Laws and applicable Sanctions.
p. [reserved].
q. The Borrower has filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them it or their its properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Aes Corp)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Each of the Borrower and its Subsidiaries is (i) an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualificationqualification necessary, except where such failure to so qualify would not materially adversely affect result in a Material Adverse Change. Each of the Borrower and its business, condition Subsidiaries has all requisite corporate (financial or otherwise), operations other applicable) powers and authority to own or propertieslease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower of this Agreement and each Loan Document to which it is, or is to become, a party, party are within the Borrower’s organizational corporate (or other applicable) powers, have been duly authorized by all necessary organizational action and corporate (or other applicable) action, do not contravene (i) the Borrower’s organizational documentscertificate of incorporation, (ii) law any law, rule or regulation applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower Borrower, and will not result in or its propertiesrequire the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower, except as provided in this Agreement and any other the Loan Document.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Action is required for the due execution, execution or delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is a party or is to become, a party, except for the FERC Authorization, performance by the Borrower of its obligations under this Agreement or any other Loan Document other than those which has have previously been duly obtained, and is are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, threatened appeal or other proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or appeal with respect thereto have expired.
(d) This Agreement and the other each Loan Documents Document to which it is, or the Borrower is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower party thereto, enforceable against the Borrower in accordance with its termsterms subject to the effect of bankruptcy, subject, however, to any applicable bankruptcyinsolvency, reorganization, rearrangementfraudulent conveyance, moratorium or and other similar laws of general application affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)creditors generally.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or or, to the Borrower’s knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have has a reasonable possibility of resulting in a Material Adverse EffectChange.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2005, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, and the unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at June 30, 2006, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the six (6) months then ended, copies of which have been furnished to the Administrative Agent and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied, subject, solely in the case of unaudited consolidated balance sheets, to normal year end adjustments. There Since December 31, 2005, there has been no Material Adverse Change, or material adverse change in any matter disclosed in the facts and information regarding such filings that could reasonably be expected entities as represented to result in such a Material Adverse Effectthe Closing Date.
(g) No event has occurred The issuance of, and is continuing that constitutes an Event the existence of, the Letters of Default or that would constitute an Event Credit, the Extensions of Default but for Credit and the requirement that notice be given or time elapse or bothuse of the proceeds thereof will comply with all provisions of applicable law and regulation in all material respects.
(h) The Neither the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of nor any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Subsidiary of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Revolving Credit Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower Each of the Borrower, Consumers and each of the Restricted Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction state of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesqualification necessary.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, is or is to become, will be a party, party (i) are within the Borrower’s organizational 's corporate powers, (ii) have been duly authorized by all necessary organizational corporate action and (iii) do not contravene and will not (iA) require any consent or approval of the stockholders of the Borrower’s organizational documents, (iiB) law applicable to violate any provision of the charter or by-laws of the Borrower or its propertiesof law, or (iiiC) violate any contractual or legal restriction binding on or affecting the Borrower, (D) result in a breach of, or constitute a default under, any indenture or loan or credit agreement or any other agreement, lease or instrument to which the Borrower is a party or by which it or its properties may be bound or affected, or (E) result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effectrequired.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subject; subject to the qualification, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general application affecting rights and remedies of creditors and the application of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ei) The consolidated financial statements balance sheet of the Borrower and its Consolidated Subsidiaries as of at December 31, 20231994, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such datethen ended, as set forth together with the report thereon of Xxxxxx Xxxxxxxx & Co. included in the Borrower’s 's Annual Report on Form 10-K for the fiscal year ended on such dateDecember 31, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP1994, and the unaudited consolidated financial statements balance sheet of the Borrower and its Consolidated Subsidiaries as of March 31at September 30, 20241995, and the related unaudited consolidated statements of income, retained earnings and cash flows for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10nine-Q for the fiscal quarter ended on such date, as filed with the SECmonth period then ended, copies of each of which have been furnished to each BankLender, fairly present (subject, in the consolidated case of such balance sheets and statements of income for the nine months ended September 30, 1995, to year-end adjustments) the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March generally accepted accounting principles consistently applied; (ii) since December 31, 20241994, to year-end adjustments and the absence of detailed footnotes. Except except as disclosed in the Disclosure DocumentsBorrower's Quarterly Report on Form 10-Q for the period ended September 30, since December 31, 20231995, there has been no material adverse change in the business, financial condition or results of operations of the Borrower and its Subsidiaries, considered as a whole, or in the Borrower's ability to perform its obligations under this Agreement or any other Loan Document to which it is or will be a party; and (iii) the Borrower has no material liabilities or obligations except as reflected in the foregoing financial statements and in Schedule II hereto, as evidenced by the Loan Documents and as may be incurred, in accordance with the terms of this Agreement, in the ordinary course of business (as presently conducted) following the date of this Agreement.
(f) Except as disclosed in the Disclosure DocumentsBorrower's Quarterly Report on Form 10-Q for the period ended September 30, 1995, there is are no pending or threatened action actions, suits or proceeding proceedings against or, to the knowledge of the Borrower, affecting the Borrower or any of its Subsidiaries or the properties of the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator arbitrator, that would, if adversely determined, reasonably be expected to materially adversely affect the financial condition, properties, business or operations of the Borrower and its Subsidiaries, considered as a whole, or affect the legality, validity or enforceability of this Agreement or any other Loan Document.
(g) All insurance required by Section 7.01(b) is in full force and effect.
(h) No Plan Termination Event has occurred nor is reasonably expected to occur with respect to any Plan of the Borrower or any of its ERISA Affiliates which would result in a material liability to the Borrower, except as disclosed and consented to by the Majority Lenders in writing from time to time. Since the date of the most recent Schedule B (Actuarial Information) to the annual report of the Borrower (Form 5500 Series), if any, there has been no material adverse change in the funding status of the Plans referred therein and no "prohibited transaction" has occurred with respect thereto which is reasonably expected to result in a material liability to the Borrower. Neither the Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan, except as disclosed and consented to by the Majority Lenders in writing from time to time.
(i) No fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (except for any such circumstance, if any, which is covered by insurance which coverage has been confirmed and not disputed by the relevant insurer) affecting the properties, business or operations of the Borrower, Consumers or any Restricted Subsidiary has occurred that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such material adverse effect on the business, financial condition or results of operations of (A) the Borrower and its Subsidiaries, considered as a Material Adverse Effectwhole, or (B) Consumers and its Subsidiaries, considered as a whole.
(gj) No event The Borrower and its Subsidiaries have filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or, to the extent the Borrower or any of its Subsidiaries is contesting in good faith an assertion of liability based on such returns, has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but provided adequate reserves for the requirement that notice be given or time elapse or bothpayment thereof in accordance with GAAP.
(hk) No extraordinary judicial, regulatory or other legal constraints exist which limit or restrict Consumers' ability to declare or pay cash dividends with respect to its capital stock.
(l) The Borrower owns 100% of the outstanding shares of common stock of Enterprises.
(m) The Borrower owns not less than 80% of the outstanding shares of common stock of Consumers.
(n) The CMS Energy Corporation 1995-1999 Financial Forecast, dated August 21, 1995 (the "Projections"), copies of which have been distributed to the Banks, is based upon assumptions that the Borrower believed were reasonable at the time the Projections were delivered, and all other financial information previously delivered by the Borrower to the Co- Agents are true and correct in all material respects as at the dates and for the periods indicated therein.
(o) The Borrower is not engaged in the business of extending credit for the purpose of purchasing buying or carrying Margin Stockmargin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Extension of Credit Advance will be used to purchase buy or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing buying or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxmargin stock.
(ip) The Borrower is not an “investment company” or a company “controlled” by an “investment company” (within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP).
(q) The No proceeds of any Advance will be used to acquire any equity security of a class that is registered pursuant to Section 12 of the Exchange Act.
(r) Following application of the proceeds of each Advance, not more than 25 percent of the value of the assets of the Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to on a consolidated basis will be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except margin stock (a) Taxes that that are being contested in good faith within the meaning of Regulation U issued by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that Board of Governors of the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectFederal Reserve System).
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows, which representations and warranties shall be deemed repeated on each day during the Revolving Period:
(a) The Borrower is (i) duly organized, an exempted company incorporated with limited liability validly existing and in good standing under the laws of the jurisdiction of its organizationCayman Islands, and (ii) is duly qualified to do business as a foreign organization business, and is in each good standing, in every jurisdiction in which where the nature of the its business conducted or the property owned, operated or leased by requires it requires such qualification, except where failure to be so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesqualified.
(b) The execution, delivery and performance by the Borrower of each Loan Document the Transaction Documents to which it isis a party and the other documents to be delivered by it hereunder, or is to becomeincluding the Borrower's use of the proceeds of Advances, a party, (i) are within the Borrower’s organizational 's corporate powers, (ii) have been duly authorized by all necessary organizational action and corporate action, (iii) do not contravene (i1) the Borrower’s organizational documents's Memorandum and Articles of Association, (ii2) law any law, rule or regulation applicable to the Borrower or its propertiesBorrower, or (iii3) any contractual or legal restriction binding on or affecting the Borrower or its propertiesproperty or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower or its property, and (iv) do not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its properties (except for the interest created pursuant to this Agreement). Each of the Transaction Documents to which the Borrower is a party has been duly executed and delivered by the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) the Transaction Documents to which it is a party or any other Loan Document document to which it is, or is to become, a partybe delivered thereunder, except for the FERC Authorization, filing of UCC financing statements which has been duly obtained, are referred to herein and is in full force and effecttherein.
(d) This Agreement and Each of the other Loan Transaction Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, subject to any applicable bankruptcy, reorganization, rearrangementinsolvency, moratorium or other similar laws affecting the rights of creditors generally the enforcement of creditors’ rights and remedies and to general equitable principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity or at lawequity).
(e) The consolidated financial statements Since its date of the Borrower and its Subsidiaries as of December 31formation, 2023August 11, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232004, there has been no material adverse change in the business, operations, property, prospects or financial or other condition or operations of the Borrower.
(f) Except as set forth in Schedule V or as otherwise disclosed by the Parent in the Disclosure Documentsits publicly available SEC filings, there is no pending or threatened action action, investigation or proceeding affecting the Borrower Borrower, the Parent or any of its their Subsidiaries before any court, governmental agency or arbitrator that which if determined adversely to any of them, could reasonably be expected to have a Material Adverse Effect. There has been no change expected, individually or in any matter disclosed in such filings that could reasonably be expected the aggregate, to result in such a Material Adverse Effect.
(g) No event has occurred and proceeds of any Advances will be used to acquire any equity security of a class which is continuing that constitutes an Event registered pursuant to Section 12 of Default or that would constitute an Event the Securities Exchange Act of Default but for the requirement that notice be given or time elapse or both1934.
(h) The Borrower is not engaged the legal and beneficial owner of the Transferred Assets and Related Security free and clear of any Adverse Claim. The Program Agent for the benefit of the Investors and the Banks has a valid and perfected first priority security interest in each Transferred Asset now existing or hereafter arising and in the business Related Security and Collections with respect thereto. No effective financing statement or other instrument similar in effect covering any Collateral is on file in any recording office, except those listed in Schedule VI relating to the Credit Agreement and the Indentures, all of extending credit for which the purpose of purchasing or carrying Margin StockBorrower represents relate to security interests that are subject to the Intercreditor Agreement, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% those filed in favor of the value of Program Agent relating to this Agreement and those filed pursuant to the assets Purchase Agreements. Each Transferred Asset characterized in any Borrower Report or other written statement made by or on behalf of the Borrower and its Subsidiaries subject to as an Eligible Receivable or Eligible Participation Interest, or as included in the restrictions Net Receivables Pool Balance is, as of Section 5.02(athe date of such Borrower Report or other statement (or, if applicable, as of a date certain specified in such report), (c) an Eligible Receivable or (d) will consist of or be represented by Xxxxxx XxxxxEligible Participation Interest, as properly included in the Net Receivables Pool Balance.
(i) Each Borrower Report, Interim Report, Daily Report and Determination Date Certificate (if prepared by the Borrower or one of its Affiliates, or to the extent that information contained therein is supplied by the Borrower or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Borrower to the Program Agent, the Investor Agents, the Investors or the Banks in connection with and before or after the date of this Agreement is or will be accurate in all material respects as of its date or (except as other wise disclosed to the Program Agent, the Investor Agents, the Investors or the Banks, as the case may be, at such time) as of the date so furnished (or, if applicable, as of a date certain specified in such report), and no such document contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(j) The principal place of business and chief executive office of the Borrower and the office where the Borrower keeps its records concerning the Transferred Assets are located at the address or addresses referred to in Section 5.01(b).
(k) The names and addresses of all the Deposit Banks and Account Banks, together with the post office boxes and account numbers of the Lock-Boxes, Deposit Accounts and Governmental Entity Receivables Accounts, as the case may be, of the Borrower at such banks, are as specified in Schedule I hereto, as such Schedule I may be updated from time to time pursuant to Section 5.01(g). The Lock-Boxes, Deposit Accounts and Governmental Entity Receivables Accounts, as the case may be, are the only post office boxes and bank accounts into which Collections of Receivables and Participated Receivables are deposited or remitted. The Borrower has delivered to the Program Agent a fully executed Deposit Account Agreement or Governmental Entity Receivables Agreement with respect to each Deposit Account, Governmental Entity Receivables Account and any associated Lock-Boxes.
(l) Each Pool Receivable (or Participated Receivable, as the case may be) (i) is not an “investment company” of a nature that financing such Receivable or Participated Receivable with the proceeds of notes would constitute a company “controlled” by an “investment company” "current transaction" within the meaning of Section 3(a)(3) of the Securities Act of 1933, as amended, and (ii) is an obligation representing part or all of the sales price of merchandise, insurance or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
(jm) Except as could The Borrower is not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, known by and does not reasonably expect to incur, use any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability tradename or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed doing- business-as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedname.
(n) As The Borrower was incorporated on August 11, 2004 under the name of Cayman Resources (22) Ltd. (registration no. 138722), and the Borrower did not engage in any business activities prior to the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respectsof this Agreement. The Borrower has no Subsidiaries.
(oi) The fair value of the property of the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by is greater than the Borrowertotal amount of liabilities, its Subsidiaries and their respective directorsincluding contingent liabilities, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (aii) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge present fair salable value of the Borrower, any director or agent assets of the Borrower or any Subsidiary is not less than the amount that will act be required to pay all probable liabilities of the Borrower on its debts as they become absolute and matured, (iii) the Borrower does not intend to, and does not believe that it will, incur debts or liabilities beyond the Borrower's abilities to pay such debts and liabilities as they mature and (iv) the Borrower is not engaged in any capacity a business or a transaction, and is not about to engage in connection with a business or benefit from a transaction, for which the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable SanctionsBorrower's property would constitute unreasonably small capital.
(p) All payments due from With respect to each Transferred Asset the Borrower (i) shall have received such Transferred Asset as a contribution to the capital of the Borrower by Cayman SPE I, (ii) shall have purchased such Transferred Asset from Cayman SPE I in exchange for payment (made by the Borrower to Cayman SPE I in accordance with the provisions of the Tertiary Purchase Agreement) of cash or any of its ERISA Affiliates (iii) shall have received such Transferred Asset partially as a capital contribution and partially for payment in cash, in each case in an amount which constitutes fair consideration and reasonably equivalent value. Each such sale referred to in the preceding sentence shall not have been made for or on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith an antecedent debt owed by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) Cayman SPE I to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectBorrower.
Appears in 1 contract
Representations and Warranties of the Borrower. (a) The Borrower represents and warrants to the Bank as follows:
(ai) The Borrower is (i) a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction its state of its organizationincorporation, and (ii) is duly qualified to do business as a foreign organization in each every other jurisdiction in which where the nature of the business conducted or the property owned, operated or leased by it its activities requires such qualification, qualification except where the failure to so qualify would not materially adversely affect its businesshave a material adverse effect upon the Borrower, condition (financial has all requisite power and authority, corporate or otherwise), operations or to conduct its businesses, to own its properties, to execute, deliver, and perform all of its obligations under this Agreement, the Security Documents and the Notes.
(bii) The execution, delivery and performance by the Borrower of each Loan Document to which it isthis Agreement, or is to become, a party, are within the Borrower’s organizational powers, Security Documents and the Notes have been duly authorized by all necessary organizational corporate action and do not contravene and will not require any consent or approval of the stockholders of the Borrower which has not been obtained or violate any provision of the charter documents of the Borrower.
(b) The Borrower additionally represents and warrants to the Bank as follows:
(i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due The execution, delivery and performance by the Borrower of this Agreement Agreement, the Security Documents and the Notes do not and will not (including obtaining x) violate any Extensions provision of Credit any law, rule, regulation (including, without limitation, Regulation U of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to the Borrower, (y) except for license agreements which by their terms restrict the pledge of or an encumbrance or assignment of the license, result in a breach of or constitute a default under this Agreement) any indenture or loan or credit agreement or any other Loan Document agreement, lease or instrument to which it isthe Borrower is a party or by which the Borrower or the Borrower's properties may be bound or affected, or (z) except as may be provided by this Agreement, the Security Documents and/or the Notes, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever on any Assets or properties of the Borrower.
(ii) The Borrower is not in material default under any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any indenture, agreement, lease or instrument by which it is bound, which default would result in a material adverse consequence to becomethe Borrower.
(iii) No authorization, a partyconsent, approval, license, exemption of or filing or registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, is or will be necessary to the valid execution, delivery or performance by the Borrower of this Agreement, the Security Documents or the Notes except for the FERC Authorization, which has been duly obtained, and is in full force and effectperfection of liens granted under certain of the Security Documents.
(div) This Agreement and The most recent balance sheet of the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will beBorrower, the legal, valid related statement of income and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements retained earnings of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated all other financial statements information of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each the Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates of the date thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended ending on such datesdate, subject in each instance to any applicable year end adjustments, all in accordance with GAAPGAAP applied on a consistent basis, subject, in the case of and since such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023date, there has been no material adverse change in such condition or operations and there has been no declaration or payment of dividends or distributions to any stockholders or members of the Borrower except as expressly permitted by this Agreement.
(v) Except as disclosed to the Bank in writing, there are no actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any properties or assets of the Borrower before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which, if determined adversely to the Borrower would have a material adverse effect on the financial condition condition, Assets, or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(hvi) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Extension of Credit the Loan will be used to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxmargin stock.
(ivii) The Borrower is not an “investment company” a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any restriction of any kind which would have a company “controlled” by an “investment company” within material adverse effect on the meaning business, properties, assets, operations or condition, financial or otherwise, of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf the ability of the Borrower to carry out its obligations under this Agreement, the Administrative AgentSecurity Documents or the Notes, any LC Issuing Bank except for license agreements which by their terms restrict the pledge of or any Lender pursuant to an encumbrance or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light assignment of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedlicense.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. (a) The Borrower represents and warrants warrants, on the date of this Agreement, as follows:
(ai) The Borrower is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organization, and (ii) Minnesota; is duly qualified to do business as a foreign organization corporation in each jurisdiction in which its operations or the nature of the its business conducted or the property ownedrequires, operated or leased by it requires such qualification, except where failure other than failures to so qualify which would not materially adversely affect its have a material adverse effect on the Consolidated business, assets, properties or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole or on the ability of the Borrower to perform its obligations under this Agreement; is a Certificated Air Carrier; has its location (for purposes of Article 9 of the U.C.C.) in Eagan, Minnesota; holds all licenses, certificates, permits and franchises from the appropriate agencies of the United States and/or all other governmental authorities having jurisdiction necessary to authorize the Borrower to engage in air transport and to carry on scheduled passenger service as presently conducted (other than those licenses, certificates, permits and franchises which, if not obtained, would not have a material adverse effect on the Consolidated business, assets, properties or condition (financial or otherwise) of the Borrower and its Subsidiaries taken as a whole or on the ability of the Borrower to perform its obligations under this Agreement), operations or properties; and has the corporate power and authority to conduct its business as it is presently being conducted.
(bii) The Taking into account the Final Order, the execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a partythis Agreement and the consummation of the transactions contemplated hereby, are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i1) the Borrower’s organizational documents, (ii) law applicable to the Borrower charter or its properties, by-laws or (iii2) any law or any contractual or legal restriction binding on or affecting the Borrower and do not result in or require the creation of any lien, security interest or other charge or encumbrance (other than pursuant to the Mortgage) upon or with respect to any of its properties.
(ciii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement, except for (1) the Final Order, (2) the orders, permits, waivers, exemptions, authorizations and approvals of the Governmental Authorities having jurisdiction over the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained and are in full force and effect and (2) any such authorization or approval or other action, notice or filing to the extent required to be given or obtained only after the date of this Agreement.
(iv) This Agreement has been duly executed and delivered by the Borrower. Taking into account the Final Order, this Agreement is the legal, valid binding obligation of the Borrower enforceable against the Borrower in accordance with its terms except as such enforceability may be limited after the Consummation Date by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability.
(including obtaining v) The Consolidated balance sheet of NAC and its Subsidiaries as at the end of the most recent fiscal year of NAC for which such balance sheet is available, and the related Consolidated statements of operations and cash flows of NAC and its Subsidiaries for such fiscal year, accompanied by an opinion of Ernst & Young, independent public accountants (or any Extensions other firm of Credit independent public accountants of recognized standing selected by NAC), and the Consolidated balance sheet of NAC and its Subsidiaries as at the end of the most recent fiscal quarter of NAC (excluding the final fiscal quarter of each fiscal year) for which such balance sheet is available, and the related Consolidated statements of operations and cash flows of NAC and its Subsidiaries for the fiscal period then ended, duly certified by the chief financial officer of NAC, copies of which have been furnished to the Administrative Agent, fairly present, subject, in the case of said balance sheet as at the end of such fiscal quarter, and said statements of operations and cash flows for such fiscal period then ended, to year-end audit adjustments, the Consolidated financial condition of NAC and its Subsidiaries as at such dates and the Consolidated results of the operations of NAC and its Subsidiaries for the period ended on such dates, all in accordance with generally accepted accounting principles consistently applied.
(vi) Except for the Case, there is no pending or threatened action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (1) is reasonably likely to have a material adverse effect on (A) the business, condition (financial or otherwise), operations or properties of the Borrower and its Subsidiaries taken as a whole, (B) the rights and remedies of the Administrative Agent or any Lender under this Agreement or (C) the ability of the Borrower to perform its obligations under this Agreement, or (2) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(vii) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(viii) The Final Order is in full force and effect and has not been vacated, reversed, modified, amended or stayed in any manner that affects the rights or duties of Airbus or any other of its Affiliates, in each case, without the prior written consent of the Agent, and the Bankruptcy Court has not granted relief to any Person that is inconsistent with the Term Sheet.
(b) On the Funding Date, the Borrower represents and warrants as set forth in paragraphs (i), (v) and (vii) of Section 4.1(a) as of such date and as follows:
(i) The Borrower has the corporate power and authority to own the Aircraft securing the Loan.
(ii) Taking into account the Final Order, the execution, delivery and performance by the Borrower of each Loan Document to which it isis or will be a party, and the consummation of the transactions contemplated thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (1) the Borrower’s charter or by-laws or (2) any law or any contractual restriction binding on or affecting the Borrower and do not result in or require the creation of any Lien, security interest or other charge or encumbrance (other than pursuant to the Mortgage) upon or with respect to any of its properties.
(iii) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for the due execution, delivery and performance by the Borrower of any Loan Document to become, which it is or will be a party, except for (1) the FERC AuthorizationFinal Order, (2) the orders, permits, waivers, exemptions, authorizations and approvals of the Governmental Authorities having jurisdiction over the operation of the Aircraft by the Borrower, which has orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained or will prior to the Funding Date be duly obtained, and is will on the Funding Date be in full force and effecteffect and (2) any such authorization or approval or other action, notice or filing to the extent required to be given or obtained only after the Funding Date.
(div) Except for (1) the filing for recording pursuant to the Transportation Code of the Mortgage and the Mortgage Supplement attached thereto and made a part thereof, (2) the filing of financing statements (and continuation statements at periodic intervals) with respect to the perfection of the security and other interests created by such documents in accordance with the U.C.C. of the State of Minnesota (which financing statements the Borrower has caused or is in the process of causing to be presented in due form for filing to the appropriate filing office in Minnesota) and (3) the taking of possession by the Agent of the original counterparts of the Mortgage and the Mortgage Supplement covering the Aircraft, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the U.C.C.), is necessary or advisable in order to establish or perfect the Agent’s security interest in the Aircraft (granted pursuant to the Mortgage and the Mortgage Supplement covering the Aircraft) as against the Borrower and any third parties in any applicable jurisdictions in the United States.
(v) There has not occurred any Default or an Event of Default which is presently continuing and there has not occurred any event which constitutes or would, with the passage of time or the giving of notice, or both, constitute an Event of Loss.
(vi) This Agreement has been, and each of the other Loan Documents to which it is, or is to become, the Borrower will be a party when delivered hereunder will have been or will be (as the case may be) been, duly executed and delivered by it, and this the Borrower. This Agreement is, and upon execution and delivery thereof each other of the Loan Document Documents to which the Borrower will be a party when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable their respective terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of relating to or limiting creditors’ rights and remedies and generally or by equitable principles relating to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)enforceability.
(evii) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and Except for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure DocumentsCase, there is no pending or threatened action action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could (1) is reasonably be expected likely to have a Material Adverse Effect. There has been no change in material adverse effect on (A) the business, condition (financial or otherwise), operations or properties of the Borrower and its Subsidiaries taken as a whole, (B) the rights and remedies of the Agents or any matter disclosed in such filings that could reasonably be expected Lender under the Loan Documents or (C) the ability of the Borrower to result in such a Material Adverse Effectperform its obligations under the Loan Documents or (2) purports to affect the legality, validity or enforceability of this Agreement or any Loan Document or the consummation of the transactions contemplated hereby or thereby.
(gviii) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit the Loan will be used to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxmargin stock.
(iix) The Borrower is not an “investment company” or a company “controlled” has good title to the Aircraft, free and clear of Liens other than the Permitted Liens. The Aircraft has been duly certified by an “investment company” within the meaning FAA as to type and airworthiness, has been insured by the Borrower in accordance with the terms of the Investment Company Act Mortgage and is in the condition and state of 1940, as amendedrepair required under the terms of the Mortgage.
(jx) Except The Agent, as could not reasonably be expected to result in a Material Adverse Effectsecured party under the Mortgage, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) entitled to the most recent annual report protection of Section 1110 of the Bankruptcy Code in connection with its right to take possession of the Airframe and Engines securing the Loan in the event of a case under Chapter 11 of the Bankruptcy Code (Form 5500 Seriesincluding the Case) with respect to each ERISA Plan, copies of in which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect is a debtor. Pursuant to incur, any withdrawal liability under ERISA to any Multiemployer Plan subsections 364(c)(2) and (ii3) neither of the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under Bankruptcy Code and the WARN ActFinal Order, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished all amounts owing by or on behalf of the Borrower to the Administrative Agent, Lenders under any LC Issuing Bank or Loan Document are secured by a first priority perfected Lien on the Collateral.
(xi) Except for any Lender pursuant to defaults arising out of or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in Case or related to the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statementsfinancial condition, the Borrower represents only that such information was prepared is not in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control material default under any material financing (including, without limitation, either of the Borrower and actual results may vary from the projections and such variations may be material andA330 Financings, accordinglyif Airbus Finance Company Limited or an Affiliate remains at risk thereunder, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(nfinancing under the AFS Term Loan if AFS or an Affiliate remains at risk thereunder, any lease financing pursuant to an AL Sublease, if Airbus Leasing IV or an Affiliate remains at risk thereunder, or any EETC participation, if Airbus or an Affiliate remains at risk thereunder) As of or under the date deliveredAirbus A319 Purchase Agreement, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof Airbus A330 Purchase Agreement or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable SanctionsOther Purchase Agreement.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Each of the Borrower and its Significant Subsidiaries is (i) a corporation duly organized, organized and validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, qualification necessary (except where the failure to so qualify would not materially adversely affect its business, condition (financial or otherwiseconstitute a Material Adverse Change), operations or properties.
(b) The execution, delivery and performance by the Borrower of each this Agreement and the other Loan Document Documents to which it is, is or is to become, will be a party, and the receipt by the Borrower of the proceeds of Extensions of Credit on the date of any Extension of Credit, are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not and will not contravene (i) the Borrower’s organizational documentscharter or by-laws, (ii) law applicable to the Borrower or its propertiesany Requirement of Law, or (iii) any legal or contractual or legal restriction binding on or affecting the Borrower Borrower; and such execution, delivery and performance do not and will not result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for in connection with the due execution, delivery and or performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effectDocument.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subjectsubject to the qualifications, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general principles application affecting rights and remedies of equity (regardless creditors and that the remedy of whether enforceability specific performance or of injunctive relief is considered in a proceeding in equity or at law)subject to the discretion of the court before which any proceedings therefor may be brought.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of Since December 31, 20232010, and for the year ended on such date, except as set forth disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March December 31, 2024, 2010 and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the period ended September 30, 2011 (but excluding any risk factors, forward-looking disclosures and any other disclosures that are cautionary, predictive or forward-looking in nature), there has been no event or circumstance that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Change.
(f) The audited consolidated balance sheets of the Borrower and its Subsidiaries as at December 31, 2010, and the related audited consolidated statements of income of the Borrower and its Subsidiaries for the fiscal quarter ended on such dateyear then ended, and the unaudited consolidated balance sheets of the Borrower and its Subsidiaries as filed with at September 30, 2011 and the SECrelated unaudited consolidated statements of income for the nine-month period then ended, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such balance sheets and statements of income for the nine-month period ended September 30, 2011, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance accordance, in all material respects, with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(fg) Except as disclosed in the Disclosure DocumentsBorrower’s Report on Form 10-K for the year ended December 31, 2010 and Report on Form 10-Q for the period ended September 30, 2011 (but excluding any risk factors, forward-looking disclosures and any other disclosures that are cautionary, predictive or forward-looking in nature), there is no pending or threatened action or proceeding affecting the Borrower or any of its Significant Subsidiaries or properties before any court, governmental agency or arbitrator arbitrator, that might reasonably be expected to constitute a Material Adverse Change, and since December 31, 2010 there have been no material adverse developments in any action or proceeding so disclosed that might reasonably be expected to constitute a Material Adverse Change.
(h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan of the Borrower or any of its ERISA Affiliates which would result in a liability to the Borrower, no “prohibited transaction” has occurred with respect to any Plan of the Borrower that is reasonably expected to result in a liability to the Borrower and neither the Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any withdrawal liability under ERISA to any Multiemployer Plan, in each case that could reasonably be expected to have constitute a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse EffectChange.
(gi) No event The Borrower has occurred filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or, to the extent the Borrower is continuing that constitutes contesting in good faith by appropriate proceedings an Event assertion of Default or that would constitute an Event of Default but liability based on such returns and has provided adequate reserves for the requirement that notice be given or time elapse or bothpayment thereof in accordance with GAAP.
(hj) The Neither the Borrower nor any Significant Subsidiary of the Borrower is not engaged principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds making of each Extension of Credit, not more Margin Stock will constitute less than 25% of the value 25 percent of the assets (as determined by any reasonable method) of the Borrower and its Significant Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxon a consolidated basis.
(ik) The Borrower is not an “investment company” or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, Neither the Borrower or any Affiliate of the Borrower (i) the Borrower has not incurredis a Sanctioned Person, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any has more than 15% of its ERISA Affiliates has incurred assets in Sanctioned Countries, or (iii) derives more than 15% of its operating income from investments in, or transactions with, Sanctioned Persons or Sanctioned Countries. No part of the proceeds of any liability Advance hereunder will be used directly or obligation under the WARN Actindirectly to fund any operations in, which remains unpaid finance any investments or unsatisfiedactivities in or make any payments to, a Sanctioned Person or a Sanctioned Country.
(m) The reports, financial statements and other written information furnished by or on behalf Neither the making of the Borrower to Advances hereunder nor the Administrative Agentuse of the proceeds thereof will violate the PATRIOT Act, any LC Issuing Bank or any Lender pursuant to or in connection the Trading with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934Enemy Act, as amended, do not contain and will not contain, when taken as a whole, or any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or will be made, not misleading in any material respect; provided that, with respect to projections enabling legislation or executive order relating thereto. The Borrower and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements its Significant Subsidiaries are in fact achieved will depend upon future events some of which are not within compliance in all material respects with the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedPATRIOT Act.
(n) As Each of the date deliveredBorrower and its Significant Subsidiaries has timely filed all material reports, documents and other materials required to be filed by it in order to comply with the information included in the Beneficial Ownership Certificationrequirements of all applicable laws, if anyrules, is true regulations and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctionsorders of any governmental authority, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are is otherwise in compliance with Anti-Corruption Laws the requirements of all applicable laws, rules, regulations and applicable Sanctions orders of any governmental authority in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge respect of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any conduct of its ERISA Affiliates on account business and the ownership and operation of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) each case to the extent that the failure to do so could notcomply therewith, individually or in the aggregate, could not reasonably be expected to have constitute a Material Adverse EffectChange.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) : The Borrower is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization corporation in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, business, properties, or properties.
(b) prospects. The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, this Agreement are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) the Borrower’s organizational documents's charter or by-laws, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) . No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (Agreement, including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a partyAdvances, except for the FERC Authorization, following (each of which has been duly filed or obtained, and is final and in full force and effect.
): (dA) the filing of the Declaration on Form U-1 and amendments and exhibits thereto in File No. 70-9749 and (B) the SEC Order. This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ ' rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) . The consolidated financial statements of the Borrower and its Subsidiaries subsidiaries as of December 31, 2023, 2004 and for the year ended on such date, as set forth in the Borrower’s 's Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries subsidiaries as of March 31, 20242005, and for the fiscal quarter three-month period ended on such date, as date set forth in the Borrower’s 's Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such statements dated March 31, 2005, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotesgenerally accepted accounting principles consistently applied. Except as disclosed in the Disclosure DocumentsBorrower's Quarterly Report on Form 10-Q for the fiscal period ended March 31, 2005, since December 31, 20232004, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) . Except as disclosed in the Disclosure DocumentsBorrower's Annual Report on Form 10-K for the fiscal year ended December 31, 2004, and the Borrower's Quarterly Report on Form 10-Q for the period ended March 31, 2005, and the Borrower's Current Reports on Form 8-K dated May 18, 2005 (filed May 19, 2005), dated May 13, 2005 (filed May 19, 2005), dated May 25, 2005 (filed June 1, 2005), and dated June 1, 2005 (filed June 14, 2005), there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries subsidiaries before any court, governmental agency or arbitrator that that, if determined adversely, could reasonably be expected to have a Material Adverse Effectmaterial adverse effect upon the condition (financial or otherwise), operations, business, properties or prospects of the Borrower or on its ability to perform its obligations under this Agreement, or that purports to affect the legality, validity, binding effect or enforceability of this Agreement. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) material adverse effect. No event has occurred and is continuing that constitutes a Prepayment Event or an Event of Default or that would constitute a Prepayment Event or an Event of Default but for the requirement that notice be given or time elapse or both.
(h) . The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be is, on the date hereof, represented by Xxxxxx Xxxxx.
margin stock (i) within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). The Borrower is not an “"investment company” " or a company “"controlled” " by an “"investment company” " within the meaning of the Investment Company Act of 1940, as amended.
(j) Except , or an "investment advisor" within the meaning of the Investment Company Act of 1940, as could not reasonably be expected to result in amended. The Borrower is a Material Adverse Effect"holding company" as that term is defined in, no and is registered under, the Public Utility Holding Company Act of 1935, as amended. No ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
Plan that may materially and adversely affect the condition (k) financial or otherwise), operations, business, properties or prospects of the Borrower and its subsidiaries, taken as a whole. Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no material adverse change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the status. The Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedPlan.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) 1. The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, organization and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) 2. The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) 3. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the City Council Authorization and FERC Authorization, both of which has have been duly obtained, obtained and is are in full force and effect, and except that each such Extension of Credit must be made in accordance with the terms and conditions of the City Council Authorization.
(d) 4. This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) 5. The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2020 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 20242021, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 20242021, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232020, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) 6. Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) 7. No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) 8. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) 9. The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) 10. Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) 11. Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) 12. Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) 13. The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) 14. As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) 15. The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) 16. All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) 17. The Borrower and its Subsidiaries have has filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them it or their its properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, organization and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the City Council Authorization and FERC Authorization, both of which has have been duly obtained, obtained and is are in full force and effect, and except that each such Extension of Credit must be made in accordance with the terms and conditions of the City Council Authorization.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2023 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have has filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them it or their its properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Each of the Borrower and its Subsidiaries is (i) an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualificationqualification necessary, except where such failure to so qualify would not materially adversely affect result in a Material Adverse Change. Each of the Borrower and its business, condition Subsidiaries has all requisite corporate (financial or otherwise), operations other applicable) powers and authority to own or propertieslease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower of this Agreement and each Loan Document to which it is, or is to become, a party, party are within the Borrower’s organizational 's corporate (or other applicable) powers, have been duly authorized by all necessary organizational action and corporate (or other applicable) action, do not contravene (i) the Borrower’s organizational documents's certificate of incorporation, (ii) law any law, rule or regulation applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower Borrower, and will not result in or its propertiesrequire the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower, except as provided in this Agreement and any other the Loan Document.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Action is required for the due execution, execution or delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is a party or is to become, a party, except for the FERC Authorization, performance by the Borrower of its obligations under this Agreement or any other Loan Document other than those which has have previously been duly obtained, and is are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, threatened appeal or other proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or appeal with respect thereto have expired.
(d) This Agreement and the other each Loan Documents Document to which it is, or the Borrower is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower party thereto, enforceable against the Borrower in accordance with its termsterms subject to the effect of bankruptcy, subject, however, to any applicable bankruptcyinsolvency, reorganization, rearrangementfraudulent conveyance, moratorium or and other similar laws of general application affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)creditors generally.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or or, to the Borrower's knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have has a reasonable possibility of resulting in a Material Adverse EffectChange.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2003, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, and the unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as at March 31, 2004, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the six (6) months then ended, copies of which have been furnished to the Administrative Agent and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied, subject, solely in the case of unaudited consolidated balance sheets, to normal year end adjustments. There Since March 31, 2004, there has been no Material Adverse Change, or material adverse change in any matter disclosed in the facts and information regarding such filings that could reasonably be expected entities as represented to result in such a Material Adverse Effectthe Closing Date.
(g) No event has occurred The issuance of, and is continuing that constitutes an Event the existence of, the Letters of Default or that would constitute an Event Credit, the Extensions of Default but for Credit and the requirement that notice be given or time elapse or bothuse of the proceeds thereof will comply with all provisions of applicable law and regulation in all material respects.
(h) The Neither the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of nor any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Subsidiary of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “"investment company” " or a company “"controlled” " by an “"investment company” ", within the meaning of the Investment Company Act of 1940, as amended.
(i) The Borrower is a "holding company" exempt from registration under Section 5 of the Public Utility Holding Company Act of 1935, as amended, pursuant to Section 3(a)(2) of such Act.
(j) Except as Neither the Borrower nor its Subsidiaries is engaged in the business of extending credit for the purpose of buying or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any drawing on the Letters of Credit or the Extensions of Credit will be used to buy or carry any margin stock or to extend credit to others for the purpose of buying or carrying any margin stock.
(k) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan which reasonably could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Change. Since the actuarial valuation date specified in the most recent Schedule B (Actuarial Information) to the most recent annual report of Plans maintained by the Borrower (Form 5500 Series), if any, (i) with respect to each ERISA Plan, copies of which have there has been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents no Material Adverse Change in the funding status of such the Plans referred to therein and (ii) no "prohibited transaction" has occurred with respect thereto. Neither the Borrower nor any of its respective ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any Multiemployer Plan.
(l) Except as set forth in the Disclosure Documents, the Borrower and its Subsidiaries are in compliance in all material respects with all applicable Federal, state and local statutes, rules, regulations, orders and other provisions of law relating to Hazardous Materials, air emissions, water discharge, noise emission and liquid disposal, and since other environmental, health and safety matters, other than those the date non-compliance with which would not result in a Material Adverse Change (taking into consideration all fines, penalties and sanctions that may be imposed because of such Schedule B there non-compliance) or on the ability of the Borrower to perform its obligations under this Agreement or any other Loan Document to which the Borrower is a party. Except as set forth in the Disclosure Documents, neither the Borrower nor any of its respective Subsidiaries has received from any Governmental Authority any notice of any material violation of any such statute, rule, regulation, order or provision.
(m) The Borrower and its Subsidiaries have filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, except to the extent that the Borrower or any such Subsidiary is diligently contesting any such taxes in good faith and by appropriate proceedings, and for which adequate reserves for payment thereof have been no change in established.
(n) No event has occurred or is continuing which constitutes a Default or an Event of Default, or which constitutes, or which with the passage of time or giving of notice or both would constitute, a default or event of default by the Borrower or Subsidiary thereof under any material agreement or contract, judgment, decree or order by which the Borrower or any of its respective properties may be bound or which would require the Borrower or Subsidiary thereof to make any payment thereunder prior to the scheduled maturity date therefore, where such funding status that default could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respectsChange.
(o) The As of the Closing Date, the Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, each of its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge will be Solvent.
(p) The capitalization of the Borrower, its directors Borrower and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any each Significant Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the BorrowerBorrower consists of the Capital Stock, authorized, issued and outstanding, of such classes and series, with or without par value, described on Schedule II hereto. All such outstanding Capital Stock has been duly authorized and validly issued and are fully paid and nonassessable. Except as set forth in the Disclosure Documents, there are no outstanding warrants, subscriptions, options, securities, instruments or other rights of any director type or agent nature whatsoever, which are convertible into, exchangeable for or otherwise provide for or permit the issuance of, Capital Stock of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAPare otherwise exercisable by any Person.
(q) The Borrower and each Subsidiary of the Borrower has good and marketable title to all assets and other property purported to be owned by it.
(r) None of the properties or assets of the Borrower is subject to any Lien, except Permitted Liens.
(s) All written information, reports and other papers and data produced by or on behalf of the Borrower and furnished to the Administrative Agent and the Lenders were, at the time the same were so furnished, complete and correct in all material respects. No document furnished or written statement made to the Administrative Agent or the Lenders by the Borrower in connection with the negotiation, preparation or execution of this Agreement or any other Loan Documents contains or will contain any untrue statement of a fact material to the creditworthiness of the Borrower or its Subsidiaries have filed all federal, or omits or will omit to state and other Tax returns and reports required a fact necessary in order to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to make the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.statements contained therein not misleading. [End of Article V]
Appears in 1 contract
Samples: Revolving Credit Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower Each of the Borrower, Consumers and each of the Restricted Subsidiaries is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction state of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesqualification necessary.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, is or is to become, will be a party, party (i) are within the Borrower’s organizational 's corporate powers, (ii) have been duly authorized by all necessary organizational corporate action and (iii) do not contravene and will not (iA) require any consent or approval of the stockholders of the Borrower’s organizational documents, (iiB) law applicable to violate any provision of the charter or by-laws of the Borrower or its propertiesof law, or (iiiC) violate any contractual or legal restriction binding on or affecting the Borrower, (D) result in a breach of, or constitute a default under, any indenture or loan or credit agreement or any other agreement, lease or instrument to which the Borrower is a party or by which it or its properties may be bound or affected, or (E) result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Approval is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effectrequired.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document to which the Borrower will be a party when executed and delivered hereunder will be, the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subject; subject to the qualification, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally that the enforcement of creditors’ the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general application affecting rights and remedies of creditors and the application of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ei) The consolidated financial statements balance sheet of the Borrower and its Consolidated Subsidiaries as of at December 31, 20231996, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year ended on such datethen ended, as set forth together with the report thereon of Artxxx Xxdxxxxx & Co. included in the Borrower’s 's Annual Report on Form 10-K for the fiscal year ended on such dateDecember 31, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP1996, and the unaudited consolidated financial statements balance sheet of the Borrower and its Consolidated Subsidiaries as of at March 31, 20241997, and the related unaudited consolidated statements of income, retained earnings and cash flows for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10three-Q for the fiscal quarter ended on such date, as filed with the SECmonth period then ended, copies of each of which have been furnished to each BankLender, fairly present (subject, in the consolidated case of such balance sheet and statement of income for the three months ended March 31, 1997, to year-end adjustments) the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, generally accepted accounting principles consistently applied; (ii) since December 31, 20231996, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
Change; and (g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (iiii) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither no material liabilities or obligations except as reflected in the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, foregoing financial statements and other written information furnished in Schedule II, as evidenced by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicableincurred, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federalthe terms of this Agreement, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectordinary course of business (as presently conducted) following the date of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (CMS Energy Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsfollows on and as of the Effective Date and on and as of the Closing Date, both before and immediately after giving effect to the Transactions to occur on the Closing Date:
(a) The Borrower is (i) a corporation duly organized, incorporated, validly existing and in good standing under the laws of the jurisdiction State of its organizationDelaware, and (ii) duly qualified has all corporate powers and all material governmental licenses, authorizations, consents and approvals required to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect carry on its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document this Agreement and the Notes to which it isbe delivered by it, or is to becomeif any, a partyand the consummation of the Transactions, are within the Borrower’s organizational corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) contravene, or constitute a default under, any provision of applicable law or regulation or of the Borrower’s organizational documents, (ii) law applicable to certificate of incorporation of the Borrower or its propertiesof any judgment, injunction, order, decree, material agreement or (iii) any contractual or legal restriction other instrument binding on or affecting upon the Borrower or result in the creation or imposition of any Lien on any asset of the Borrower or any of its propertiesConsolidated Subsidiaries.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the Transactions or the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document the Notes to which it isbe delivered by it, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effectif any.
(d) This Agreement has been, and each of the other Loan Documents Notes to which it isbe delivered by it, or is to becomeif any, a party when delivered hereunder will have been or will be (as the case may be) been, duly executed and delivered by it, and this the Borrower. This Agreement is, and upon execution and delivery thereof each other Loan Document of the Notes to be delivered by it when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its their respective terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting the rights of creditors generally the enforcement of creditors’ rights and remedies and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equity.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Credit Agreement (Interpublic Group of Companies, Inc.)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Each of the Borrower and its Subsidiaries is (i) an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable and (ii) is duly qualified to do business as a foreign organization in, and is in each jurisdiction in which good standing in, all other jurisdictions where the nature of the its business conducted or the nature of property owned, operated owned or leased used by it requires makes such qualificationqualification necessary, except where such failure to so qualify would not materially adversely affect result in a Material Adverse Effect. Each of the Borrower and its business, condition Subsidiaries has all requisite corporate (financial or otherwise), operations other applicable) powers and authority to own or propertieslease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower and, where applicable, each Subsidiary of this Agreement and each Loan Document to which it is, or is to become, a party, party are within the Borrower’s organizational or such Subsidiary’s corporate (or other applicable) powers, have been duly authorized by all necessary organizational action and corporate (or other applicable) action, do not contravene (i) the Borrower’s organizational documentsor such Subsidiary’s certificate of incorporation (or other applicable formation document or operating agreement), (ii) law any law, rule or regulation applicable to the Borrower or its properties, such Subsidiary or (iii) any contractual or legal restriction binding on or affecting the Borrower or such Subsidiary, and will not result in or require the imposition of any lien or encumbrance on, or security interest in, any property (including, without limitation, accounts or contract rights) of the Borrower or its propertiesSubsidiaries, except as provided or permitted in this Agreement and any other the Loan Document.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Governmental Action is required for the due executionexecution or delivery by the Borrower or its Subsidiaries of this Agreement, delivery and any other Loan Document to which it is a party or for the performance by the Borrower or its Subsidiaries of its obligations under this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, party other than those which has have previously been duly obtained, and is are in full force and effect, are not subject to any pending or, to the knowledge of the Borrower, threatened appeal or other proceeding seeking reconsideration and as to which all applicable periods of time for review, rehearing or appeal with respect thereto have expired.
(d) This Agreement and the other each Loan Documents Document to which it is, the Borrower or any Subsidiary is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower or Subsidiary party thereto, enforceable against the Borrower or applicable Subsidiary in accordance with its respective terms, subjectsubject to the effect of bankruptcy, however, to any applicable bankruptcyinsolvency, reorganization, rearrangementfraudulent conveyance, moratorium or and other similar laws of general application affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)creditors generally.
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or or, to the Borrower’s knowledge, threatened action or proceeding (including, without limitation, any proceeding relating to or arising out of Environmental Laws) affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have has a Material Adverse Effect. There has been no change reasonable possibility of resulting in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(f) The audited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, as at December 31, 2014, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to the Administrative Agent and each Lender, fairly present in all material respects the financial condition of the Borrower and its Consolidated Subsidiaries as at such dates and the results of the operations of the Borrower and its Consolidated Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Since December 31, 2014, there has been no Material Adverse Effect, or material adverse change in the facts and information regarding such entities as represented to the Closing Date.
(g) No event has occurred The making of Loans and is continuing that constitutes an Event the use of Default or that would constitute an Event the proceeds thereof will comply with all provisions of Default but for the requirement that notice be given or time elapse or bothApplicable Law in all material respects.
(h) The Neither the Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of nor any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets Subsidiary of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Term Loan Credit Agreement (South Jersey Industries Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit Term Loans under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2020 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 20242021, June 30, 2021 and September 30, 2021 and for the fiscal quarter quarters ended on such datedates, as set forth in the Borrower’s Quarterly Report Reports on Form 10-Q for the fiscal quarter quarters ended on such datedates, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter quarters ended March 31, 20242021, June 30, 2021 and September 30, 2021, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232020, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit Term Loan will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of CreditTerm Loan, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank Agent or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Entergy Louisiana, LLC)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower No Default or Event of Default has occurred and is (i) duly organizedcontinuing, validly existing and all of the representations set forth in Article 5 of the Loan Agreement and in good standing under the laws other Loan Documents are true and complete as of the jurisdiction date of its organizationthis Amendment (except any such representation which is as of a specified date, which is accurate and (ii) duly qualified to do business complete as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwisedate), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it isthis Amendment and the agreements, or is to become, a party, instruments and other documents executed in connection herewith (i) are within the Borrower’s 's organizational powerspower, (ii) have been duly authorized by all necessary organizational action or proper actions of or pertaining to Borrower (including the consent of directors, officers or shareholders, as applicable), (iii) are not in contravention of (A) any agreement or indenture to which Borrower is a party or by which Borrower is bound, (B) Borrower's Charter Documents, (C) any provision of law, or (D) any order, writ, judgment, injunction, or decree of any court of competent jurisdiction binding on Borrower or its property and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable do not require the consent or approval of any Governmental Unit or any other Person that has not been obtained and furnished to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its propertiesLender.
(c) No authorization or authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Person is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) Amendment or any of the agreements, instruments and other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is documents executed in full force and effectconnection herewith.
(d) This Amendment, the Loan Agreement as amended hereby, and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, Mortgage constitute the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable their respective terms except as enforceability may be limited by (i) bankruptcy, reorganization, rearrangement, moratorium insolvency or similar laws affecting creditors' rights generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any general principles of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedequity.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Each of the Borrower and each Subsidiary is (i) a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction of its organization, Delaware and (ii) is duly qualified as a foreign corporation to do business as a foreign organization and is in each good standing in every jurisdiction in which where the nature of the its business conducted or the property ownedrequires it to be so qualified and has all power, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial corporate or otherwise), operations to conduct its business and to own, or hold under lease, its assets and properties, and to execute and deliver, and to perform, to the extent applicable, all of its obligations under the Loan Documents to which it is, or will be, a party.
(b) The execution, delivery and performance by each of the Borrower and each Guarantor of each Loan Document to which it is, is or is to become, will be a party, party are within the Borrower’s organizational 's or each Guarantor's, as the case may be, corporate powers, have been duly authorized by all necessary organizational action and corporate action, do not contravene (i) the Borrower’s organizational documents's or either Guarantor's, as the case may be, charter or by-laws or (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or either Guarantor, as the case may be, and do not result in or require the creation of any lien, security interest or other charge or encumbrance (other than pursuant hereto or pursuant to any Loan Document or Revolving Loan Document) upon or with respect to any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required (i) for the due execution, delivery and performance by the Borrower and each Guarantor of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, is or is to become, will be a party, except (ii) for the FERC Authorizationgrant by Borrower and each Guarantor of the security interests granted by the Mortgages and the Security Agreements, which has been duly obtained(iii) for the perfection of or exercise by the Agent or the Bank of their respective rights and remedies under any Loan Document, or (iv) for the continued effectiveness of the valid and is in full force perfected first priority security interests and effectliens created by the Security Agreements and the Mortgages and the Security Agreements and Mortgages do not adversely affect the security interests and liens created by the Existing Collateral Documents.
(d) This Agreement is and the Note and each other Loan Documents Document to which it is, the Borrower or either Guarantor is to become, a party have been or will be (a party when delivered hereunder will be, legal, valid and binding obligations of the Borrower or the Guarantors, as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower or the Guarantors, as the case may be, in accordance with its their respective terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition balance sheet of the Borrower and its Subsidiaries as at such dates June 3, 1989, and the related consolidated results statements of the operations income and retained earnings of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.Fiscal Year then ended,
(f) Except as disclosed in the Disclosure DocumentsThe Borrower and each Subsidiary have filed all tax returns (Federal, there State and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or provided adequate reserves for payment thereof.
(g) There is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in arbitrator, which may (i) materially adversely affect the financial condition or operations of the Borrower or any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
of its Subsidiaries or (gii) No event has occurred and is continuing that constitutes an Event call into question the legality, validity or enforceability of Default any Loan Document or that would constitute an Event of Default but for the requirement that notice be given or time elapse or bothany Revolving Loan Document.
(h) The Borrower is not engaged in Guarantors and Sunbelt Freight, Inc. are the business of extending credit for the purpose of purchasing or carrying Margin Stockonly Subsidiaries of, and no proceeds are wholly-owned by, the Borrower.
(i) Following application of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Creditthe Advance, not more than 25 percent (25% %) of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the restrictions provisions of Section 5.02(a), (c5.02(e) or (d5.02(f) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect subject to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading restriction contained in any material respect; provided thatagreement or instrument, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from between the Borrower or any of its ERISA Affiliates on account Subsidiaries and the Bank or any affiliate of wages the Bank relating to Debt and employee within the scope of Section 6.01(d) will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(k) The proceeds of the Initial Advance were used partially for the purpose of refinancing the Borrower's purchase of an egg production facility and retiree health feed mill at Bethune, South Carolina and welfare partially for the purpose of financing the operations at such facilities. The proceeds of the Additional Advances shall be used to refinance the purchase of the New Properties and to refinance the repurchase of certain preferred stock issued by Borrower to Sunny Fresh Foods, Inc.
(l) The policies of title insurance required hereunder and under the mortgages and the all perils insurance of which the Agent is primary loss payee hereunder and under the Mortgages and Security Agreements are currently fully paid and non-assessable.
(m) There are no mortgages, deeds of trust, pledges, liens, security interests or other benefits have been paid charges or properly accrued encumbrances (including liens or retained security titles of conditional vendors) of any nature whatsoever on the financial statements Encumbered Properties or Collateral other than the Permitted Encumbrances and the liens created pursuant to the Existing Collateral Documents.
(n) From and after the time of the Advance, the Borrower or such ERISA Affiliatethe Guarantors, as applicablethe case may be, in accordance with GAAPwill be the beneficial owner of all of the presently existing Collateral covered by the Security Agreements and the Encumbered Property covered by the Mortgages, free and clear of all mortgages, deeds of trust, pledges, liens, security interests, options and other charges or encumbrances, except for those created or permitted by the Loan Documents, and the Borrower or the Guarantors, as the case may be, will be the record owner of all of such presently existing Collateral and Encumbered Property.
(qo) The From and after the recording of the Mortgages, they will create valid and perfected mortgage liens on and security interests in the Encumbered Properties, subject only to Permitted Encumbrances, enforceable against the Borrower and its Subsidiaries have filed Cal Maine Farms, Inc., as the case may be, and all federal, state third parties and securing the payment of all obligations purported to be secured thereby and all filings and other Tax returns actions necessary or desirable to perfect and reports required to be filed, protect such mortgage liens and security interests will have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effectbeen duly taken.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, properties or propertiesprospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Borrower’s organizational powers, have been duly authorized by all necessary organizational action and do not contravene (i) the Borrower’s organizational documents, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Regulatory Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, 2017 and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 20242018 and June 30, 2018 and for the fiscal quarter quarters ended on such datedates, as set forth in the Borrower’s Quarterly Report Reports on Form 10-Q for the fiscal quarter quarters ended on such datedates, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter quarters ended March 31, 20242018 and June 30, 2018, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232017, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxMargin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedPlan.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Lender as follows:
(a) The Borrower is Borrower: (i) is a corporation duly organized, validly existing and in good standing under the laws of the State, Commonwealth or other jurisdiction of its organization, and (ii) is duly qualified to do business and in good standing as a foreign organization business entity in each other jurisdiction in which it owns or leases property or in which the nature conduct of the its business conducted or the property owned, operated or leased by requires it requires such qualification, except where failure to so qualify would not materially adversely affect qualify, and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, agreements and other approvals) to own and lease and operate its business, condition (financial or otherwise), operations or propertiesproperties and to carry on its business as now conducted and as proposed to be conducted. The Borrower’s principal place of business is located in the State of California.
(b) The execution, delivery and performance by the Borrower of each the Note, this Agreement and the other Loan Document Documents to which it is, or is to become, a party, party are within the Borrower’s organizational powers, have been duly authorized authorized, by all necessary organizational action action, and (i) do not contravene (i) the Borrower’s organizational documentscharter or bylaws, operating agreement or partnership agreement, as the case may be, (ii) do not contravene any law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower, (iii) will not result in the breach of, or constitute a default or require any payment to be made under, any loan agreement, credit agreement, indenture, mortgage, deed of trust, bond, note, lease or other instrument or agreement binding on or otherwise affecting the Borrower or any of its properties, or (iv) except for the Liens created under the Loan Documents, will not result in or require the creation or imposition of any Lien upon or with respect to any of the properties of the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other the Loan Document Documents to which it is, or is to become, a party, except for or (ii) the FERC Authorization, which has been duly obtained, and is in full force and effectgranting by the Borrower of the Liens granted by it created pursuant to the Collateral Documents.
(d) This The Note, this Agreement and the other Loan Documents to which it is, or the Borrower is to become, a party have been or will be (as the case may be) duly executed and delivered by itthe Borrower, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, are the legal, valid and binding obligation obligations of the Borrower enforceable against the Borrower in accordance with its their respective terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, unsatisfied judgment or other proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably be expected likely to have a Material Adverse Effect. There has been no change in , or (ii) purports to affect the legality, validity or enforceability of the Note, this Agreement or any matter disclosed in such filings that could reasonably be expected other Loan Document to result in such which the Borrower is a Material Adverse Effectparty, or the consummation of the transactions contemplated hereby or thereby.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(hf) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (as defined in Regulation U), and no proceeds of any Extension of Credit Advance will be used (i) to purchase or carry any Margin Stock margin stock (as defined in Regulation U) or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Creditmargin stock, not more than 25% (ii) to repay any loan that was used to purchase or carry any margin stock, or (iii) to repay a loan made by an Affiliate of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxLender.
(ig) The “Isis Pharmaceuticals, Inc.” is the proper legal name of the Borrower, and the Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning corporation; and as of the Investment Company Act of 1940date hereof, as amendedit has only those Subsidiaries and Major Affiliates listed on Schedule 4.01(g) hereof.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(kh) Schedule B (Actuarial Information4.01(h) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies hereof sets forth Borrower’s stockholders who beneficially own greater than 5% of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except Borrower’s voting stock as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender disclosed pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, and the ownership interest in Borrower’s Subsidiaries.
(i) Schedule 4.01(i) hereof sets forth all of the Liens existing as amendedof the date hereof filed against the Borrower, do not contain as debtor, and will not containno such Liens are “adverse claims,” as such term is defined in Section 8-102(a) of the Code.
(j) The Borrower, when taken as each other Loan Party and/or Subsidiary of the Borrower or any other Loan Party (and to Borrower’s knowledge, each Major Affiliate), in each case to the extent required, (i) are in full compliance with and have policies, procedures, and internal controls in place that are reasonably designed to comply with applicable anti-corruption and anti-money laundering laws, rules and regulations, including, without limitation, the applicable provisions of the USA Patriot Xxx 0000, 107 Public Law 56 (October 26, 2001) (the “Patriot Act”), (ii) have implemented a wholeCustomer Identification Program (“CIP”) and perform CIP due diligence in accordance with the Patriot Act, (iii) have policies and procedures reasonably designed to comply with Sections 312 and 319 of the Patriot Act, including the identification of beneficial ownership where required under applicable law, and (iv) have policies and procedures in place reasonably designed to prohibit accounts for foreign shell banks in compliance with Sections 313 and 319 of the Patriot Act.
(k) Neither the Borrower, any untrue statement other Loan Party, and/or Subsidiary of the Borrower or any Loan Party (and to Borrower’s knowledge, no Major Affiliate), nor any Person who, to the Borrower’s knowledge, has or will have an interest in the transaction contemplated by this Agreement or will participate, in any manner whatsoever, in receiving or utilizing the proceeds of any Advance, whether directly or indirectly, is or has been a Politically Exposed Person or an Immediate Family Member or Close Associate of a material fact senior political figure.
(l) Neither the Borrower, any other Loan Party, and/or Subsidiary of the Borrower or any Loan Party (and do not omit and will not omitto Borrower’s knowledge, when taken as a wholeno Major Affiliate), nor any director, officer, or employee thereof, nor, to state the Borrower’s knowledge, any, agent or representative thereof, is a Person that, or is owned or controlled by a Person that, (i) is the subject of any fact necessary sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union or Her Majesty’s Treasury (collectively, “Economic Sanctions”), (ii) is located, organized or resident in a country or territory that would be impermissible under any Economic Sanctions (including, without limitation, the countries and territories of Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria) or (iii) has taken any action in furtherance of an offer, payment, promise to make the statements thereinpay, in the light or authorization or approval of the circumstances under which they were payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any Person while knowing that all or some portion of the money or value will be madeoffered, not misleading in given or promised to anyone to improperly influence official action, to obtain or retain business or otherwise to secure any material respect; provided that, with respect to projections and forward looking statements, improper advantage
(m) The financial statements of the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable as at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some end of which are not within the control most recently ended fiscal year of the Borrower containing a balance sheet of the Borrower and actual results may vary from the projections related statements of income and such variations may be material and, accordingly, cash flow of the Borrower gives for the fiscal year then ended, duly certified by an Authorized Person of the Borrower, copies of which have been furnished to the Lender, fairly present the financial condition of the Borrower as at such date and the results of the operations of the Borrower for the period ended on such date, all in accordance with GAAP. Since the end of the most recently ended fiscal year there has been no representation and warranty that such projections and forward looking statements will be achievedMaterial Adverse Change with respect to the Borrower.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax tax returns and reports required to be filed by the Borrower in any jurisdiction have been filed, and have paid all federal, state and other Taxestaxes, assessments, fees and other governmental charges levied upon the Borrower, or imposed upon them or their propertiesany of its property, income or assets otherwise franchises, which are shown to be due and payablepayable on such returns have been paid. The Borrower is not aware of any proposed additional tax assessment or tax to be assessed against or applicable to the Borrower.
(o) The Borrower is solvent, is able to pay its debts as they become due and now owns property having a value both at fair valuation and a present fair salable value greater than the amount required to pay such debts as they mature, and will not be rendered insolvent, or be left with insufficient capital, or be unable to pay its debts as they mature, by the execution, delivery and performance of this Agreement or any other Loan Document to which the Borrower is a party or by the transactions contemplated hereunder or thereunder.
(p) The Borrower is not in default on any obligation for borrowed money, any purchase money obligation or other material lease, commitment, contract, instrument or other obligation, except as disclosed to Lender in writing.
(aq) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for There is no event which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have constitutes a Material Adverse EffectDefault.
Appears in 1 contract
Samples: Line of Credit Agreement (Isis Pharmaceuticals Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants on and as of the date hereof and on the Closing Date as follows:
(a) The Borrower is (i) duly organizedincorporated, validly existing and in good standing under the laws of Delaware, has the jurisdiction of corporate power and authority to own its organization, assets and (ii) duly qualified to do transact the business as a foreign organization in each jurisdiction in which the nature of the business conducted it is now engaged or the property owned, operated or leased by it requires such qualification, except where failure proposed to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesbe engaged.
(b) The execution, delivery and performance by the Borrower of each the Loan Document Documents to which it is, or is to become, a party, are within the Borrower’s organizational powers, party have been duly authorized by all necessary organizational action corporate actions and do not contravene and will not (i) the Borrower’s organizational documents, contravene its charter or by-laws; (ii) law applicable violate any provision of, or require any filing, registration, consent or approval under, any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award having applicability to the Borrower; (iii) result in a breach of or constitute a default or require any consent under any material indenture or loan or credit agreement or any other agreement, lease or instrument to which the Borrower or its propertiesSubsidiaries are a party or by which they or their properties may be bound or affected (including, without limitation, the existing facilities listed on SCHEDULE 4.1(F) and, if not repaid in full and terminated at the Closing Date, the Foothill Credit Facility); or (iiiiv) any contractual or legal restriction binding on or affecting cause the Borrower to be in default (with or its propertieswithout notice or lapse of time or both) under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument.
(c) Each of the Loan Documents to which the Borrower is a party has been duly executed and delivered and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) , the Stock Pledge Agreements, the Note or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)party.
(e) The consolidated financial statements Set forth on SCHEDULE 4.1(E) is a complete and accurate list showing, as of the date hereof, after giving effect to the share purchase contemplated in the Subsidiaries Stock Purchase Agreement, all Subsidiaries of the Borrower and, as to each such Subsidiary, the Loan Agreement Minolta Co., Ltd. QMS, Inc. jurisdiction of its incorporation, the number of shares of each class of capital stock authorized, the number outstanding on the date hereof and the percentage of the outstanding shares of each such class owned, directly or indirectly, by the Borrower. None of the capital stock of any such Subsidiary is subject to any outstanding option, warrant, right of conversion or purchase or any similar right other than those of the Borrower and its Subsidiaries as Affiliates. All of December 31the issued and outstanding capital stock of each such Subsidiary has been validly issued, 2023, fully paid and for non-assessable and is owned by the year ended on such date, as set forth Borrower (after giving effect to the share purchase contemplated in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion Subsidiaries Stock Purchase Agreement) free and clear of Deloitte & Touche LLP, and the consolidated financial statements all Liens other than Liens in favor of the Borrower Lender and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of Affiliates. Neither the Borrower and its Subsidiaries as at nor any such dates and Subsidiary is a party to, or has knowledge of, any agreement restricting the consolidated results transfer or hypothecation of any shares of capital stock of any such Subsidiary, other than the operations of the Loan Documents. The Borrower and its Subsidiaries for the periods ended on does not own or hold directly or indirectly, any capital stock or equity security of, or any equity interest in, any Person other than such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the BorrowerSubsidiaries.
(f) Except as disclosed in There are no Liens of any nature whatsoever on the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower Collateral or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge properties of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and Subsidiaries, QMS Australia or QMS Europe other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicablethan those permitted by SECTION 5.2(A) (Negative Covenants) and, in accordance with GAAP.
(q) respect of QMS Australia and QMS Europe, those listed on SCHEDULE 4.1(F). The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) Liens granted to the extent that Lender pursuant to the failure Stock Pledge Agreements are fully perfected first priority Liens in and to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectCollateral.
Appears in 1 contract
Samples: Loan Agreement (QMS Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) : The Borrower is (i) a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, incorporation and (ii) is duly qualified to do business as a foreign organization corporation in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations operations, business, properties, or properties.
(b) prospects. The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, this Agreement are within the Borrower’s organizational 's corporate powers, have been duly authorized by all necessary organizational corporate action and do not contravene (i) the Borrower’s organizational documents's charter or by-laws, (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) . No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body (i) is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, following (each of which has been duly filed or obtained, and is final and in full force and effect.
): (dA) the filing of the Declaration on Form U-1 and amendments and exhibits thereto in File No. 70-9749 and (B) the SEC Orders; and (ii) is required after June 30, 2004 and prior to July 1, 2007 for the performance by the Borrower of this Agreement, including obtaining any Borrowings under this Agreement, except for the following: (A) the filing of the Declaration on Form U-1 and amendments and exhibits thereto in File No. 70-10202 and (B) the New SEC Order. This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ ' rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) . The consolidated financial statements of the Borrower and its Subsidiaries subsidiaries as of December 31, 2023, 2003 and for the year ended on such date, as set forth in the Borrower’s 's Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries subsidiaries as of March 31, 20242004, and for the fiscal quarter three-month period ended on such date, as date set forth in the Borrower’s 's Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present (subject, in the case of such statements dated March 31, 2004, to year-end adjustments) the consolidated financial condition of the Borrower and its Subsidiaries subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotesgenerally accepted accounting principles consistently applied. Except as disclosed in the Disclosure DocumentsBorrower's Quarterly Report on Form 10-Q for the fiscal period ended March 31, 2004, since December 31, 20232003, there has been no material adverse change in the financial condition or operations of the Borrower.
(f) . Except as disclosed in the Disclosure DocumentsBorrower's Annual Report on Form 10-K for the fiscal year ended December 31, 2003, and the Borrower's Quarterly Report on Form 10-Q for the period ended March 31, 2004, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries subsidiaries before any court, governmental agency or arbitrator that that, if determined adversely, could reasonably be expected to have a Material Adverse Effectmaterial adverse effect upon the condition (financial or otherwise), operations, business, properties or prospects of the Borrower or on its ability to perform its obligations under this Agreement, or that purports to affect the legality, validity, binding effect or enforceability of this Agreement. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) material adverse effect. No event has occurred and is continuing that constitutes a Prepayment Event or an Event of Default or that would constitute a Prepayment Event or an Event of Default but for the requirement that notice be given or time elapse or both.
(h) . The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be is, on the date hereof, represented by Xxxxxx Xxxxx.
margin stock (i) within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System). The Borrower is not an “"investment company” " or a company “"controlled” " by an “"investment company” " within the meaning of the Investment Company Act of 1940, as amended.
(j) Except , or an "investment advisor" within the meaning of the Investment Company Act of 1940, as could not reasonably be expected to result in amended. The Borrower is a Material Adverse Effect"holding company" as that term is defined in, no and is registered under, the Public Utility Holding Company Act of 1935. No ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
Plan that may materially and adversely affect the condition (k) financial or otherwise), operations, business, properties or prospects of the Borrower and its subsidiaries, taken as a whole. Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no material adverse change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the status. The Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respectsPlan. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.COVENANTS OF THE BORROWER
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants to each of the other parties hereto as of the Closing Date and each Funding Date as follows:
(a) The Borrower It is (i) a business trust and is duly organized, formed and validly existing and in good standing under the laws of the jurisdiction State of Delaware and has the power and authority to enter into and perform its organization, obligations under the Operative Agreements to which it is a party and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature assuming due authorization, execution and delivery of the business conducted Trust Agreement by the parties thereto) the trust power and authority to enter into and perform the obligations under each of the other Operative Agreements to which it is or the property ownedwill be a party and each other agreement, operated or leased instrument and document to be executed and delivered by it requires on or before the Closing Date in connection with or as contemplated by each such qualification, except where failure Operative Agreement to so qualify would not materially adversely affect its business, condition (financial which it is or otherwise), operations or properties.will be a party;
(b) The execution, delivery and performance by the Borrower of each Loan Document Operative Agreement to which it isis or will be a party (assuming due authorization, or is to become, a party, are within execution and delivery of the Borrower’s organizational powers, have Trust Agreement by the parties thereto) has been duly authorized by all necessary organizational action on its part and do not contravene neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby, nor compliance by it with any of the terms and provisions thereof (i) the Borrower’s organizational documentsdoes or will require any approval or consent of any trustee or holders of any of its indebtedness or obligations, (ii) law applicable does or will contravene any Legal Requirement relating to its trust powers, (iii) does or will contravene or result in any breach of or constitute any default under, or result in the Borrower creation of any Lien upon any of its property under, (A) the Trust Agreement or its propertiesCertificate of Trust, or (iiiB) any contractual indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or legal restriction binding on credit agreement or affecting the Borrower other agreement or instrument to which it is a party or by which it or its properties.properties may be bound or affected, which contravention, breach, default or Lien under clause (B) would materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a party or (iv) does or will require any Governmental Action by any Governmental Authority regulating its trust powers;
(c) No authorization or approval or other action byThe Trust Agreement and, and no notice to or filing with, any governmental authority or regulatory body assuming the Trust Agreement is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the parties hereto, each other Operative Agreement to which the Borrower is or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by it, and each Operative Agreement to which it is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation enforceable against the Borrower it in accordance with its terms, the terms thereof subject, howeverin each case as to enforceability, to any applicable bankruptcy, reorganizationinsolvency, rearrangement, moratorium or reorganization and other similar laws affecting generally the enforcement of creditors’ creditor rights and remedies generally (insofar as any such law relates to the bankruptcy, insolvency, reorganization or similar event of the Borrower) and, as to the availability of specific performance or other injunctive relief, subject to the discretionary power of a court to deny such relief and to general principles equitable principles;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it is or will be a party before any Governmental Authority that, if adversely determined, would materially and adversely affect its ability to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of equity (regardless any of whether enforceability the Operative Agreements to which it is considered in or will become a proceeding in equity or at law).party;
(e) The consolidated financial statements It has not assigned or transferred any of its right, title or interest in or under the Lease or its interest in any of the Borrower Properties, or any portion thereof, except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative Agreements attributable to it has occurred and its Subsidiaries is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of December 31, 2023, the Loans and Holder Advances shall not be applied by it for any purpose other than the year ended on such datepurchase or lease of the Property or Properties, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLPapplicable, and the consolidated financial statements payment of Transaction Expenses and the fees, expenses and other disbursements referenced in SECTION 7;
(h) Neither it nor any Person authorized by it to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar security relating to any Property, or in any security the offering of which for the purposes of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished Securities Act would be deemed to each Bank, fairly present the consolidated financial condition be part of the Borrower and its Subsidiaries same offering as at such dates and the consolidated results offering of the operations aforementioned securities to, or solicited any offer to acquire any of the Borrower and its Subsidiaries for the periods ended on such datessame from, in accordance with GAAP, subjectany Person other than, in the case of the Notes, the Agent, and neither it nor any Person authorized by it to act on its behalf will take any action which would subject, as a direct result of such financial statements for action alone, the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence issuance or sale of detailed footnotes. Except as disclosed any interest in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in Trust Estate or the financial condition or operations Notes to the provisions of Section 5 of the Borrower.
(f) Except as disclosed in Securities Act or require the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds qualification of any Extension Operative Agreement under the Trust Indenture Act of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit1939, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxx.as amended;
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within principal place of business, chief executive office and office where the meaning of the Investment Company Act of 1940documents, as amended.
(j) Except as could not reasonably be expected accounts and records relating to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.Agreement
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is Each Loan Party and their Material Subsidiaries (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it own or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualificationbe licensed, except where the failure to be so qualify qualified would not materially adversely affect 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 business, condition (financial or otherwise), operations or propertiesproperties and to carry on its business as now conducted as and proposed to be conducted.
(b) The execution, delivery and performance by the Borrower each Loan Party of each Loan Document to which it is, is or is to become, be a party, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s organizational such Loan Party's corporate powers, have been duly authorized by all necessary organizational action corporate action, and do not contravene (i) the Borrower’s organizational documents, such Loan Party's charter or by-laws or (ii) law applicable to the Borrower or its properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower any Loan Party, any of its Subsidiaries or any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by any Loan Party of the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document Documents to which it is, is or is to become, be a party, except for the FERC Authorization, which has been duly obtained, and is in full force and effect.
(d) This Agreement has been, and each of the other Loan Documents to which it iswhen delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Loan Party party thereto. This Agreement is, and upon execution and delivery thereof each of the other Loan Document Documents when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party party thereto enforceable against the Borrower such Loan Party in accordance with its their respective terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting the rights of creditors generally the enforcement of creditors’ rights and remedies and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)equity.
(e) The consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of at December 3127, 20232003, and for the year ended on such date, as set forth in related Consolidated statements of income and cash flows of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries for the fiscal year ended on such date, as filed with the SECthen ended, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECindependent public accountants, copies of each of which have been furnished to each BankLender, fairly present the consolidated Consolidated financial condition of the Borrower and its Subsidiaries as at such dates date and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAPgenerally accepted accounting principles consistently applied. Since December 27, subject, in the case of such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232003, there has been no material adverse change in the financial condition or operations of the BorrowerMaterial Adverse Change.
(f) Except as disclosed in the Disclosure Documents, there There is no pending or threatened action action, suit, investigation, litigation or proceeding proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably be expected likely to have a Material Adverse Effect. There Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status, or financial effect on the Borrower or any matter disclosed in such filings of its Subsidiaries, of the Disclosed Litigation from that could reasonably be expected to result in such a Material Adverse Effectdescribed on Schedule 3.01(b) hereto.
(g) No event has occurred Neither the Information Memorandum nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Agent or and is continuing that constitutes an Event Lender in connection with the negotiation and syndication of Default the Loan Documents or that would constitute an Event pursuant to the terms of Default but for the requirement that notice be given Loan Documents contained any untrue statement of a material fact or time elapse or bothomitted to state a material fact necessary to make the statements made therein not misleading.
(h) The Borrower and each of its Material Subsidiaries has filed, has caused to be filed or has been included in all tax returns (Federal, state, local and foreign) required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties.
(i) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stockmargin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Extension of Credit Advance will be used to purchase or carry any Margin Stock margin stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxmargin stock.
(ij) The Borrower is not an “"investment company” ", or a company “"controlled” " by an “"investment company” ", within the meaning of the Investment Company Act of 1940, as amended.
(jk) Except Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as could not reasonably be expected currently conducted or to result in a Material Adverse Effectutilize such properties for their intended purposes, no ERISA Termination Event has occurredand none of such property is subject to any Lien, except as permitted by Section 5.02(a).
(l) Each of the Borrower and its Subsidiaries owns, or is reasonably expected licensed to occuruse, with respect all trademarks, tradenames, copyrights, patents and other intellectual property material to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Planits business, and since the date use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such Schedule B there has been no change infringements that, individually or in such funding status that the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(lm) Except as could not reasonably be expected to result All intercompany loans in a Material Adverse Effect, (i) an outstanding principal amount of $25,000,000 or more by the Borrower has not incurred, and does not reasonably expect or a Guarantor to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf a Subsidiary of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed that is not a Guarantor as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements Effective Date are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieveddescribed on Schedule 4.01(m) hereto.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federalexperienced no strikes, state and other Tax returns and reports required labor disputes, slow downs or work stoppages due to be filedlabor disagreements which have had, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, would reasonably be expected to have have, a Material Materially Adverse Effect, and, to the best knowledge of the Borrower, there are no such strikes, disputes, slow downs or work stoppages threatened against the Borrower or any of its Subsidiaries.
(o) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
Appears in 1 contract
Samples: Credit Agreement (Office Depot Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower Each Loan Party that is a corporation (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationincorporation, and (ii) is duly qualified to do business and in good standing as a foreign organization corporation in each other jurisdiction in which it owns or leases property or in which the nature conduct of the its business conducted requires it to so qualify or the property owned, operated or leased by it requires such qualification, be licensed except where the failure to so qualify would or be licensed is not materially adversely affect reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate power and authority to own or lease and operate its business, condition (financial or otherwise), operations or propertiesproperties and to carry on its business as now conducted and as proposed to be conducted.
(b) Each Loan Party that is a partnership or a limited liability company (i) is a partnership or a limited liability company duly formed and validly existing under the laws of the State of its formation, (ii) is duly qualified 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 is not reasonably likely to have a Material Adverse Effect and (iii) has all requisite partnership or a limited liability company power and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party of this Credit Agreement, the Borrower of Notes, each other Loan Document to which it is, is or is to become, be a party, and the consummation of the transactions contemplated herein and therein, are within the Borrower’s organizational such Loan Party's corporate, partnership or limited liability company powers, have been duly authorized by all necessary organizational action and corporate, partnership or limited liability company action, and, to each such Loan Party's knowledge, do not contravene (i) the Borrower’s contravene such Loan Party's organizational documents, (ii) law applicable violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, except where such violation is not reasonably likely to the Borrower or its propertieshave a Material Adverse Effect except as set forth on Schedule II hereof, or (iii) except as set forth on Schedule II hereof, conflict with or result in the breach of, or constitute a default under, any contractual contract, loan agreement, indenture, mortgage, deed of trust, lease or legal restriction other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties, except where such conflict, breach or default is not reasonably likely to have a Material Adverse Effect or (iv) except for the Borrower Liens created by the Collateral 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 propertiesSubsidiaries.
(cd) No Other than as set forth on Schedule III hereof, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by the Borrower any Loan Party of this Agreement (including obtaining any Extensions of Credit under this Agreement) or , the Notes, any other Loan Document to which it is, is or is to become, be a party, except or for the FERC Authorizationconsummation of the transactions contemplated hereby, which has been duly obtained(ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, and is (iii) the perfection or maintenance of the Liens created by the Collateral Documents or (iv) the exercise by the Lender of its rights under the Loan Documents or the remedies in full force and effectrespect of the Collateral pursuant to the Collateral Documents.
(de) This Credit Agreement has been, and the Notes, each other Loan Documents to which it isDocument when delivered hereunder will have been, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this each Loan Party thereto. This Credit Agreement is, and upon execution and delivery thereof the Notes, each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower each Loan Party thereto, enforceable against the Borrower such Loan Party in accordance with its terms, subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(ef) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements Consolidated balance sheet of the Borrower and its Subsidiaries as of March 31, 20242002, and the related Consolidated statement of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended on such dateyear then ended, and the Consolidated balance sheet of the Borrower and its Subsidiaries as set forth in at March 31, 2002, and the Borrower’s Quarterly Report on Form 10-Q related Consolidated statement of income and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended on such datenine months then ended, as filed with duly certified by the SECChairman of the Board of Borrower or any other officer of Borrower, copies of each of which have been furnished to each Bankthe Lender, fairly present present, subject, in the consolidated case of said balance sheet as at March 31, 2002, and said statement of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP, subject, in the case of such financial statements for the fiscal quarter ended generally accepted accounting principles applied on a consistent basis. Since March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 20232002, there has been no material adverse change in the financial condition or operations of the BorrowerMaterial Adverse Change.
(fg) Except All financial statements delivered by any Loan Party to the Lender, are true, correct and complete in all material respects, fairly represent such Loan Party's financial condition as disclosed of the date hereof and thereof, and no information has been omitted that would make the information previously furnished misleading or incorrect in the Disclosure Documentsany material respect.
(h) To such Loan Party's knowledge, there is no pending or threatened action action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries Loan Party not covered by insurance (subject to reasonable deductibles), including any Environmental Action, pending before any court, governmental agency or arbitrator that could (i) would be reasonably be expected likely to have a Material Adverse Effect. There Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of this Credit Agreement, the Notes, any other Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status or financial effect on any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% Loan Party of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx XxxxxDisclosed Litigation from that described on Schedule IV hereof.
(i) The Borrower is not Except as set forth on Schedule V(a) hereof to such Loan Party's knowledge, the operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all Environmental Laws, all necessary Environmental Permits have been obtained and are in effect for the operations and properties of each Loan Party and its Subsidiaries, each Loan Party and its Subsidiaries are in compliance in all material respects with all such Environmental Permits, and, no circumstances exist that would be reasonably likely to (i) form the basis of an “investment company” Environmental Action against any Loan Party or any of its Subsidiaries or any properties described in the Mortgages or the 59th Street Property that could have a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940Material Adverse Effect ox (xx) xxxxe any such property to be subject to any restrictions on ownership, as amendedoccupancy, use or transferability under any Environmental Law.
(j) Except as could set forth in the environmental reports heretofore delivered to the Lender as set forth on Schedule V(b) hereof, none of the operations and properties of each Loan Party is listed or, to the knowledge of any Loan Party, proposed for listing on the National Priorities List under CERCLA or on the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the Environmental Protection Agency or any analogous state list of sites requiring investigation or cleanup or is adjacent to any such property. Except as would not reasonably be expected to result in have a Material Adverse Effect, no ERISA Termination Event underground storage tanks, as such term is defined in 42 U.S.C.Section 6991, are located on any property in violation of applicable Environmental Laws. Except as set forth on the environmental reports heretofore provided to the Lender, the Borrower has occurred, or is reasonably expected to occur, with respect to no knowledge of any ERISA Planunderground storage tank located on any Property adjoining any Property.
(k) Schedule B Each Loan Party and each of its Subsidiaries has filed or has caused to be filed all income tax returns (Actuarial InformationFederal, state and local) required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties. The Borrower is not aware of any material unasserted claims for prior taxes against it for which adequate reserves satisfactory to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which Lender have not been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effectestablished.
(l) Except Each Mortgagor has good, marketable and insurable fee simple title to the real property described in the Mortgage executed and delivered by such Mortgagor, as could not reasonably be expected to result in a Material Adverse Effectapplicable, (i) free and clear of all Liens, other than those disclosed on such Schedule and Liens created or permitted by the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfiedLoan Documents.
(m) The reportsExcept as set forth on Schedule VI hereof, financial statements and other written information furnished by no Loan Party is in default in the performance, observance or on behalf fulfillment of any of the Borrower to the Administrative Agentobligations, any LC Issuing Bank covenants or any Lender pursuant to conditions contained herein or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect agreement or instrument to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether which it is a party or not such projections by which it or forward looking statements are in fact achieved will depend upon future events some any of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achievedits properties is bound.
(n) As of the date deliveredhereof, there has been no Material Adverse Change since the information included in date of the Beneficial Ownership Certification, if any, is true and correct in all respectsmost recent financial statements provided by the Borrower or such Loan Party to the Lender.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the BorrowerNo Loan Document or other document, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, certificate or statement furnished to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof Lender by or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent on behalf of the Borrower or any Subsidiary that will act other Loan Party contains any untrue statement of a material fact or omits to state a material fact necessary in any capacity in connection with or benefit from order to make the credit facility established hereby, statements contained herein and therein not misleading. It is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated specifically understood by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages that all such statements, representations and employee and retiree health and welfare insurance and other benefits warranties shall be deemed to have been paid or properly accrued on relied upon by the financial statements of Lender as an inducement to make the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) Loan to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectBorrower.
Appears in 1 contract
Samples: Credit Agreement (Alexanders Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) a corporation duly organized, validly existing and existing, in good standing standing, and authorized to transact business under the laws of the jurisdiction State of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or propertiesincorporation.
(b) The execution, delivery and performance by the Borrower of each Loan Document the Credit Documents to which it is, or is to become, a party, party (i) are within the Borrower’s organizational corporate powers, (ii) have been duly authorized by all necessary organizational action and corporate action, (iii) do not contravene (iA) the Borrower’s organizational documentscharter or by-laws, (ii) law applicable to as the Borrower or its propertiescase may be, or (iiiB) any contractual law, rule or regulation, or any material Contractual Obligation or legal restriction restriction, binding on or affecting the Borrower or its propertiesany Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of the Borrower or any Material Subsidiary under any Contractual Obligation binding on or affecting the Borrower or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Credit Document to which it is, or any of them is to become, a party, except for the FERC Authorization, which has such as (i) have been duly obtained, obtained or made and is that are in full force and effecteffect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) This Agreement and the other Loan Documents Each Credit Document to which it is, or the Borrower is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the is a legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, subject, however, subject to any applicable bankruptcy, insolvency, reorganization, rearrangement, moratorium or similar other laws affecting generally the enforcement of creditors’ rights generally and remedies and subject to general principles of equity (equity, regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the year ended on such date, as set forth in the Borrower’s Referenced Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SECFinancial Statements, copies of each of which have been made available or furnished to each BankLender, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates the date thereof and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods period ended on such datesdate, all in accordance with GAAPGAAP consistently applied.
(f) The Referenced Quarterly Financial Statements, subjectcopies of which have been made available or furnished to each Lender, in fairly present (subject to year end audit adjustments) the case financial condition of such financial statements the Borrower and its Subsidiaries as at the date thereof and the results of the operations of the Borrower and its Subsidiaries for the fiscal quarter period ended March 31on such date, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed all in the Disclosure Documents, since accordance with GAAP consistently applied.
(g) Since December 31, 20232018, there has been no material adverse change in the financial such condition or operations operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of the Borrower.
(fh) Except as disclosed in for the Disclosure DocumentsSpecified Event, there is no pending or threatened action action, proceeding or proceeding investigation affecting the Borrower or any of its Subsidiaries before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by the Borrower or any of its Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(i) The Borrower and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan or Letter of Credit hereunder will be used to buy or carry any Margin Stock.
(j) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There .
(k) Schedule SB (Actuarial Information) to the 2018 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule SB there has been no adverse change in any matter disclosed in such filings that could funding status which may reasonably be expected to result in such have a Material Adverse Effect.
(gl) No event Neither the Borrower nor any ERISA Affiliate has occurred and incurred or is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be given or time elapse or bothexpected to have a Material Adverse Effect.
(hm) The Neither the Borrower is not engaged in nor any ERISA Affiliate has been notified by the business sponsor of extending credit for a Multiemployer Plan that such Multiemployer Plan has been terminated, within the purpose meaning of purchasing or carrying Margin StockTitle IV of ERISA, and no proceeds Multiemployer Plan is reasonably expected to be terminated, within the meaning of any Extension Title IV of Credit will ERISA, in either such case, that could reasonably be used expected to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) will consist of or be represented by Xxxxxx Xxxxxhave a Material Adverse Effect.
(in) The Borrower is not an “investment company” ”, or a company “controlled” by an “investment company” ”, within the meaning of the Investment Company Act of 1940, as amended.
(jo) Except as could not reasonably The Borrower has filed all federal, state and other material income tax returns required to be expected filed by it and has paid or caused to result be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in a Material Adverse Effect, no ERISA Termination Event good faith and by proper proceedings and in respect of which the Borrower has occurred, or is reasonably expected to occur, set aside adequate reserves for the payment thereof in accordance with respect to any ERISA PlanGAAP.
(kp) Schedule B Except for the Specified Event, the Borrower and its Subsidiaries are and have been in compliance with all laws (Actuarial Information) including, without limitation, all Environmental Laws), except to the most recent annual report (Form 5500 Series) with respect extent that any failure to each ERISA Planbe in compliance, copies of which have been filed with individually or in the Internal Revenue Service and furnished to the Banksaggregate, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could not reasonably be expected to result in a Material Adverse Effect.
(lq) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) No Subsidiary of the Borrower has not incurredis party to, and does not reasonably expect to incuror otherwise bound by, any withdrawal liability agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to the Borrower, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to the Borrower, other than prohibitions and restrictions permitted to exist under ERISA to any Multiemployer Plan Section 6.01(e).
(r) The information, exhibits and (ii) neither reports furnished by the Borrower nor or any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower Subsidiaries to the Administrative Agent, any LC Issuing Bank Agent or to any Lender pursuant to or in connection with the Loan Documents and negotiation of, or compliance with, the transactions contemplated therebyCredit Documents, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, do not contain any untrue statement material misstatement of a material fact and do not omit and will not omit, when taken as a whole, to state a material fact or any fact necessary to make the statements therein, contained therein not misleading in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(os) The Borrower has and its Subsidiaries have implemented and maintains maintain in effect policies and procedures reasonably designed to ensure compliance by the Borrower, Borrower and its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, Borrower and its Subsidiaries and their respective officers and employees and, to the knowledge of the BorrowerBorrower and its Subsidiaries, its respective directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the BorrowerBorrower or its Subsidiaries or, any Subsidiary thereof to the knowledge of the Borrower or its Subsidiaries, any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that of its Subsidiaries which agent will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or Borrowing, use of proceeds thereof hereunder or other transaction contemplated by this Agreement Transactions will violate Anti-Corruption Laws or applicable Sanctions.
(pt) All payments due from The Borrower is not an EEA Financial Institution.
(u) The information included in each Beneficial Ownership Certification is true and correct in all respects.
(v) None of the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on Subsidiaries is an entity deemed to hold “plan assets” (within the financial statements meaning of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filedPlan Asset Regulations), and have paid all federalneither the execution, state delivery nor performance of the transactions hereunder, including the making of any Loan and other Taxesthe issuance of any Letter of Credit hereunder, assessments, fees and other governmental charges levied will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to Section 4975 of the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse EffectCode.
Appears in 1 contract
