Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows: (a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized. (b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties. (c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower. (e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents. (f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower. (g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading. (h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it. (i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 14 contracts
Samples: Credit Agreement (Appalachian Power Co), Credit Agreement (Columbus Southern Power Co /Oh/), Credit Agreement (Southwestern Electric Power Co)
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers hereby represents and warrants to the Agent and the Lenders, which representations and warranties shall survive the execution and delivery of this Amendment, that on and as followsof the date hereof and after giving effect to this Amendment:
(a) Such Borrower is a corporation duly organizedAs to each Borrower, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery delivery, and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, Amendment have been duly authorized by all necessary actionaction on the part of such Borrower.
(b) As to each Borrower, the execution, delivery, and do performance by such Borrower of this Amendment does not contravene and will not (i) such violate any provision of federal, state, or local law or regulation applicable to any Borrower’s certificate , the Governing Documents of incorporation any Borrower, or by-lawsany order, judgment, or decree of any court or other Governmental Authority binding on any Borrower, (ii) law binding conflict with, result in a breach of, or affecting such Borrower constitute (with due notice or lapse of time or both) a default under any material contractual obligation of any Borrower, (iii) result in or require the creation or imposition of any contractual restriction binding on Lien of any nature whatsoever upon any properties or affecting such Borrower assets of Borrower, other than Permitted Liens, or (iv) require any approval of any Borrower’s interest holders or any approval or consent of its propertiesany Person under any material contractual obligation of any Borrower, other than consents or approvals that have been obtained and that are still in force and effect.
(c) This Agreement has been duly As to each Borrower, this Amendment and all other documents contemplated hereby, when executed and delivered by such Borrower. This Agreement is Borrower will be the legal, legally valid and binding obligation obligations of such Borrower Borrower, enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof enforcement may be limited by equitable principles or by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium, or other similar laws affecting the enforcement of relating to or limiting creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(d) No authorization or approval or other action by, The representations 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 such Borrower warranties of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of the Borrowers set forth in the Credit Agreement and in the Loan Documents to which Governmental Approvals will have been obtained it is a party are true, correct and will be in full force complete on and effect on or prior as of the date hereof; provided that the references to the date of any Extension of Credit Agreement therein shall be deemed to or for include the account of such BorrowerCredit Agreement as amended by this Amendment.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results Each of the operations of Borrowers acknowledges that the Agent and each Lender is specifically relying upon the representations, warranties and agreements contained in this Amendment and that such Borrower representations, warranties and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower agreements constitute a material inducement to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Agent and each Significant Subsidiary of such Borrower is Lender in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itentering into this Amendment.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 6 contracts
Samples: Credit Agreement (SoftBrands, Inc.), Credit Agreement (SoftBrands, Inc.), Credit Agreement (SoftBrands, Inc.)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, State of Delaware. Each Principal Subsidiary and each Significant Subsidiary of such Borrower Restricted Affiliate is duly organizedincorporated, validly existing and in good standing under the laws of in the jurisdiction of its incorporation. The Company, each Principal Subsidiary and each Restricted Affiliate possess all corporate powers and all other authorizations and licenses necessary to engage in its business and operations as now conducted, the failure to obtain or maintain which it is incorporated or otherwise organizedwould have a Material Adverse Effect.
(b) The execution, delivery and performance by such (i) each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and the consummation its Notes (as applicable) and (ii) each Restricted Affiliate of the transactions contemplated hereby, its Restricted Affiliate Guaranty are within such Borrower’s 's or Restricted Affiliate's, as the case may be, corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (iA) such Borrower’s certificate of incorporation 's or Restricted Affiliate's, as the case may be, charter or by-laws, (ii) law binding or affecting such Borrower laws or (iiiB) any law or any material contractual restriction binding on or affecting such Borrower or any of its propertiesRestricted Affiliate, as the case may be.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by (i) such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable) or (ii) any Restricted Affiliate of its Restricted Affiliate Guaranty, except for filings necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Governmental Approvals that Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to which it is a party (as applicable) when delivered hereunder shall constitute and its Restricted Affiliate Guaranty when delivered hereunder shall constitute, the legal, valid and binding obligations of each Borrower or Restricted Affiliate, as the case may be, enforceable against such Borrower or Restricted Affiliate, as the case may be, in accordance with their respective terms, except as may be required to be obtained limited by such Borrower in connection with any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower EPNGC and its Consolidated consolidated Subsidiaries as at December 31, 20071996, and the related consolidated statements of income and cash flows of such Borrower EPNGC and its Consolidated consolidated Subsidiaries for the fiscal year then ended, accompanied reported on by an opinion of Deloitte Coopers & Touche LLPLybrxxx XXX, an independent registered public accounting firmaccountants, copies of each of which have been furnished to each Lenderthe Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of such Borrower EPNGC and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower EPNGC and its Consolidated consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since , and since December 31, 20071996, there has been no Material Adverse Change material adverse change in such condition or operations. The unaudited consolidated balance sheet of EPNGC and its consolidated Subsidiaries as of June 30, 1997, and the related consolidated statements of income and cash flows of EPNGC and its consolidated Subsidiaries for the six months then ended, certified by the chief financial officer of EPNGC, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of EPNGC and its consolidated Subsidiaries for the three months then ended, all in accordance with respect generally accepted accounting principles consistently applied (except as approved by the chief financial officer of EPNGC and as disclosed therein) and subject to such Borrowernormal year-end audit adjustments.
(gf) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Company and each Significant Subsidiary of such Borrower its Subsidiaries is in material compliance with all laws (including ERISA and Environmental Laws) laws, rules, regulations and orders of any governmental authority applicable to itit or its property except where the failure to comply, individually or in the aggregate, would not in the reasonable judgment of the Company be expected to result in a Material Adverse Effect.
(ig) No accumulated funding deficiency (as defined There is no action, suit or proceeding pending, or to the knowledge of any Borrower threatened, against or involving the Company, any Principal Subsidiary or any Restricted Affiliate in Section 302 any court, or before any arbitrator of ERISA and Section 412 any kind, or before or by any governmental body, which in the reasonable judgment of the Internal Revenue CodeCompany (taking into account the exhaustion of all appeals) that could reasonably be expected to would have a Material Adverse Effect, whether or not waivedwhich purports to affect the legality, exists with respect validity, binding effect or enforceability of this Agreement or the Notes.
(h) The Company, each Principal Subsidiary and each Restricted Affiliate have duly filed all tax returns required to any Plan. Such Borrower has not incurredbe filed, and does not presently expect have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the failure to incur, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to pay which would have a Material Adverse Effect. Such Borrower , unless and to the extent only that the same are being contested in good 51 47 faith and by appropriate proceedings by the Company, the appropriate Subsidiary or the appropriate Restricted Affiliate.
(i) The Company, each Principal Subsidiary and each Restricted Affiliate have good title to their respective properties and assets, free and clear of its ERISA Affiliates have all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not materially interfere with the business or operations of the Company, such Subsidiary or such Restricted Affiliate as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(j) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g).
(k) Each Plan has complied in all material respects with the applicable provisions of ERISA and the Internal Revenue Code. Such Borrower Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(l) The statement of assets and liabilities of each Plan and the statements of its Subsidiaries have complied changes in all material respects fund balance and in financial position, or the statement of changes in net assets available for plan benefits, for the most recent plan year for which an accountant's report with foreign law applicable respect to its Foreign Plans, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and such Plan has been established or maintainedprepared, copies of which report have been furnished to the Administrative Agent, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(m) Neither the Company nor any ERISA Affiliate has incurred, or is reasonably expected to which contributions are or have been made or should be made according incur, any Withdrawal Liability to the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is when aggregated with all other amounts required to be funded through paid to Multiemployer Plans in connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company.
(n) Neither the Company nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i).
(o) The Borrowers are not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance will be used to extend credit to others (other than to any Subsidiary of the Company) for the purpose of purchasing or carrying Margin Stock.
(p) No Borrower is an "investment company" or a trust "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(q) No Borrower is a "holding company" or other funding vehiclea "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(r) The borrowings by the Borrowers under this Agreement and the Notes and the applications of the proceeds thereof as provided herein will not violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. All representations and warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making of the Advances and the execution and delivery to the Lenders of this Agreement and the Notes.
Appears in 4 contracts
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso Tennessee Pipeline Co), Revolving Credit and Competitive Advance Facility Agreement (El Paso Natural Gas Co), Revolving Credit and Competitive Advance Facility Agreement (Tennessee Gas Pipeline Co)
Representations and Warranties of the Borrowers. Each In order to induce each Lender to enter into this Amendment, each Canadian Borrower represents and warrants as followsto each Lender with respect to the following matters applicable to it and its Subsidiaries that, and the US Borrower represents and warrants to each Lender with respect to all of the following matters that:
(a) Such Borrower is a corporation duly organized, validly existing The representations and warranties contained in good standing under the laws Article VII of the jurisdiction Original Agreement and the other Loan Documents made by it are true and correct in all material respects on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which it is incorporated or otherwise organized, case they were true and each Significant Subsidiary correct in all material respects as of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedearlier date.
(b) Each Borrower is duly authorized to execute and deliver this Amendment and is duly authorized to borrow monies and to perform its obligations under the Original Agreement. Each Borrower has duly taken all corporate action necessary to authorize the execution and delivery of this Amendment and to authorize the performance of the obligations of such Borrower hereunder.
(c) The executionexecution and delivery by each Borrower of this Amendment, delivery and the performance by such Borrower of this Agreement, its obligations hereunder and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and hereby do not contravene and will not (i) conflict with any provision of (A) any Law, (B) the Organization Documents of such Borrower’s certificate of incorporation , or by-laws(C) any agreement, judgment, license, order or permit applicable to or binding upon such Borrower unless such conflict would not reasonably be expected to have a Material Adverse Effect, or (ii) law binding or affecting result in the acceleration of any Indebtedness of such Borrower which would reasonably be expected to have a Material Adverse Effect, or (iii) result in or require the creation of any contractual restriction binding on Lien upon any assets or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation properties of such Borrower enforceable against such Borrower in accordance with its termswhich would reasonably be expected to have a Material Adverse Effect, except as expressly contemplated or permitted in the enforceability thereof may be limited by bankruptcyLoan Documents. Except as expressly contemplated in the Loan Documents, insolvencyno consent, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in generalapproval, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 byorder of, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body or any other third party is required for in connection with the due execution, delivery and or performance by such Borrower of this AgreementAmendment or to consummate any transactions contemplated by this Amendment, except for unless failure to obtain such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, consent would not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect.
(d) When duly executed and delivered, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA this Amendment and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” Original Agreement (as defined amended by this Amendment) will be a legal and binding obligation of each Borrower, enforceable in Section 3 of ERISAaccordance with its terms, except as limited by Debtor Relief Laws.
(e) which is and has been established or maintained, or to which contributions are or have been made or should be made according to No Default exists on the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleEffective Date.
Appears in 4 contracts
Samples: Credit Agreement (Devon Energy Corp/De), Credit Agreement (Devon Energy Corp/De), Credit Agreement (Devon Energy Corp/De)
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers hereby represent and warrants warrant as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing has the corporate or other power and in good standing authority and legal right to execute and deliver this Amendment and to perform its obligations hereunder and under the laws of the jurisdiction in which it is incorporated or otherwise organized, Credit Agreement (as amended hereby). The execution and delivery by each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment, and the consummation performance of its obligations under this Amendment and the transactions contemplated Credit Agreement (as amended hereby, are within such Borrower’s corporate powers), have been duly authorized by all necessary action, and do not contravene proper corporate acts (i) such or analogous acts in the case of the Subsidiary Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties).
(cb) This Amendment and the Credit Agreement has been duly executed and delivered by such Borrower. This Agreement is (as amended hereby) constitute the legal, valid and binding obligation obligations of such each Borrower enforceable against such Borrower in accordance with its their terms, except as the such enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(dc) No authorization or approval or other action by, Neither the execution and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for delivery by the due execution, delivery and performance by such Borrower Borrowers of this AgreementAmendment, except for such Governmental Approvals that may be required to be obtained by such Borrower nor the consummation of the transactions contemplated herein and in connection the Credit Agreement (as amended hereby), nor compliance with the provisions hereof or thereof will violate any Extension of Credit to law, rule, regulation, order, writ, judgment, injunction, decree or for award binding on the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower Company or any of its Significant Subsidiaries before or the Company’s or any courtSubsidiary’s articles of incorporation or by-laws or comparable constitutive documents or the provisions of any indenture, governmental agency instrument or arbitrator that agreement to which the Company or any of its Subsidiaries is reasonably likely a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than any Lien permitted by Section 7.3(F) of the Credit Agreement) in, of or on the Property of the Company or a Subsidiary pursuant to have a Material Adverse Effectthe terms of any such indenture, instrument or agreement, except any such violation, conflict or default as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, would not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any Governmental Authority, or any other third party, is required to authorize, or is required in connection with the execution or delivery of its ERISA Affiliates have complied in all material respects with ERISA and this Amendment or the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plansperformance of, if any. As used hereinor the legality, validity, binding effect or enforceability of, this Amendment or the term “Plan” shall mean an “employee pension benefit plan” Credit Agreement (as defined in Section 3 amended hereby).
(d) As of ERISA) which is the date hereof and has been established or maintained, or to which contributions are or have been made or should be made according after giving effect to the terms of this Amendment, (i) each representation and warranty by each Borrower set forth in the plan by any Credit Agreement (as amended hereby) and in the other Loan Documents to which such Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” party is true and correct in all material respects, except to the extent that such representation or warranty expressly relates to an earlier date (in which case such representation and warranty shall be true and correct as of such earlier date) and (ii) no Default or Unmatured Default exists under the terms of the Credit Agreement (as such term is defined in Section 4001(a)(3) of ERISAamended hereby). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 4 contracts
Samples: Credit Agreement (Meritor Inc), Credit Agreement (Meritor Inc), Credit Agreement (Meritor Inc)
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants as of the date hereof as follows:
(ai) Such Each Borrower is a corporation corporation, duly organized, validly existing and in good standing under the laws Laws of Delaware and has the power and authority to own its property and to carry on its business in each jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws does a material volume of the jurisdiction in which it is incorporated or otherwise organizedbusiness.
(bii) The executionEach Borrower has full power and authority to execute and deliver this Agreement and to incur and perform the obligations provided for herein, delivery and performance by such Borrower all of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, which have been duly authorized by all proper and necessary actionaction of the board of directors of such Borrower. No consent or approval of any public authority or other third party is required as a condition to the validity of this Agreement, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such each Borrower or is in compliance with all Laws and regulatory requirements to which it is subject.
(iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is constitutes the legal, valid and legally binding obligation of such Borrower each Borrower, enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(eiv) There is no pending charter, bylaw, stock provision, partnership agreement or threatened actionother document pertaining to the organization, suit, investigation, litigation power or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet authority of each Borrower and no provision of any existing agreement, mortgage, indenture or contract binding on such Borrower or affecting its Consolidated Subsidiaries as at December 31property, 2007which would conflict with or in any way prevent the execution, and delivery or carrying out of the related consolidated terms of this Agreement.
(v) The financial statements of income each Borrower as of and for the fiscal quarter ended June 30, 2019 previously delivered to the Lenders fairly present, in all material respects, the financial condition, results of operations, shareholders’ equity and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will GAAP and do not contain any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit 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, are, or will be were made, not misleading.
(hvi) Except as disclosed in to the Disclosure DocumentsLenders on Schedule II hereto, (a) there is no action, claim, notice of violation, order to show cause, complaint, investigation, or proceeding involving any Borrower pending or, to the knowledge of any Borrower threatened before any court or Governmental Authority, agency or arbitration authority or (b) there is no outstanding decree, decision, judgment, or order that has been issued by any court, Governmental Authority, agency or arbitration authority against such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itor its FCC Licenses.
(ia) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 Each of the Internal Revenue CodeFCC Licenses issued to any Borrower is valid, binding, in full force and effect, and enforceable by such Borrower in accordance with its terms; (b) any Borrower that is the holder of each such FCC License has performed all obligations thereunder in all material respects and has not received written notice of intention to terminate any FCC License or written notice alleging a material default (other than letters of default that have been rescinded or with respect to defaults that have been cured or waived); and (c) no event caused by, relating to or affecting any Borrower that is the holder of an FCC License has occurred which (with or without the giving of notice or lapse of time, or both) would constitute a Material Adverse Change by any Borrower of the terms of such FCC License, the Communications Act of 1934, as amended (the “Communications Act”), or the rules, regulations, written policies, orders and decisions of the Federal Communications Commission (“FCC”) adopted under the Communications Act, in each case as from time to time in effect (the “FCC Rules”).
(viii) Except for proceedings affecting the broadcasting industry generally, neither Borrower is a party to or has knowledge of any investigation, notice of apparent liability, violation, forfeiture or other order or complaint issued by or before the FCC, or of any other proceedings which could in any manner threaten or adversely affect the validity or continued effectiveness of the FCC Licenses of any such Person or give rise to any order of forfeiture that would reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect Change. Neither Borrower has any reason to believe that the FCC Licenses issued to any PlanBorrower will not be renewed in the ordinary course. Such Each Borrower has not incurredfiled in a timely manner all material reports, applications, documents, instruments and information required to be filed by it pursuant to the FCC Rules. No licenses, authorizations, permits or other rights other than the FCC Licenses are required under the Communications Act or the FCC Rules to operate the respective businesses of the Borrowers in substantially the manner it is being operated as of the date of this Agreement.
(ix) Parent owns all of the issued and outstanding capital stock of each of the Operating Subsidiaries, and does all such capital stock is validly issued, fully paid and non-assessable and is free and clear of all liens or adverse claims, other than the security interest in favor of the Lenders or as would 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 constitute a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” Change.
(as defined in Section 3 of ERISAx) which is and has been established No representation or maintained, or to which contributions are or have been made or should be made according to the terms of the plan warranty by any Borrower in this Agreement or in any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean the other documents or instruments executed in connection herewith and no statement contained any Plan which is certificate or other document furnished or to be furnished to the Lenders pursuant to this Agreement contains any untrue statement of a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensationmaterial fact, or other employee benefit planomits to state a material fact necessary to make the statements contained therein, program or arrangement maintained by any entity subsidiary whichin light of the circumstances in which they are made, under applicable local foreign law, is required to be funded through a trust or other funding vehiclenot misleading.
Appears in 4 contracts
Samples: Fourth Omnibus Amendment to Secured Notes and Amended and Restated Agreement Re: Secured Notes (Hc2 Holdings, Inc.), Secured Notes and Amended and Restated Agreement Re: Secured Notes (Hc2 Holdings, Inc.), Secured Notes and Amended and Restated Agreement Re: Secured Notes (Hc2 Holdings, Inc.)
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants to the Lenders as follows:
(a) Such Borrower is a corporation duly organized, validly existing the execution and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment, and the consummation performance of the transactions contemplated hereby, are within such Borrower’s corporate powers, MSD Secured Note and the GA Secured Note (i) have been duly authorized by all proper and necessary action, and do not contravene (i) action of the board of directors of such Borrower’s certificate of incorporation or by-laws, ; and (ii) law binding do not and will not conflict with (x) any material provision of Law or affecting regulatory requirements to which such Borrower is subject, or (y) any charter, bylaw, stock provision, partnership agreement or other document pertaining to the organization, power or authority of such Borrower;
(b) there is no material outstanding decree, decision, judgment or order that has been issued by any court, Governmental Authority, agency or arbitration authority against such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.FCC Licenses;
(c) This Agreement has been duly executed (x) no Borrower is in default under or with respect to any Contractual Obligation of such Borrower that could, either individually or in the aggregate reasonably be expected to result in a Material Adverse Change; or (y) no consent or approval of any public authority or any other third party is required as a condition to the validity of this Amendment;
(d) each of this Amendment and delivered by such Borrower. This Agreement each Note Document (as defined in each of the MSD Secured Note and the GA Secured Note) is the legal, valid and legally binding obligation of such Borrower Borrower, enforceable against such Borrower in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.;
(e) There is no pending the representations and warranties contained in Section 7.3 of the MSD Secured Note and in Section 7.3 of the GA Secured Note are true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed modified by materiality in the Disclosure Documents.text thereof) on and as of the date of this Amendment (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date); and
(f) The consolidated balance sheet no Default or Event of each Borrower Default has occurred and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borroweris continuing.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 4 contracts
Samples: Secured Notes and Limited Consent (INNOVATE Corp.), Eighth Omnibus Amendment to Secured Notes (INNOVATE Corp.), Secured Notes Amendment (INNOVATE Corp.)
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers hereby represent and warrants warrant as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing has the corporate or other power and in good standing authority and legal right to execute and deliver this Amendment and to perform its obligations hereunder and under the laws of the jurisdiction in which it is incorporated or otherwise organizedCredit Agreement, as amended hereby. The execution and delivery by each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment, and the consummation performance of its obligations under this Amendment and the transactions contemplated Credit Agreement, as amended hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary actionproper corporate, and do not contravene partnership or limited liability company proceedings (i) such or analogous acts in the case of the Subsidiary Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties).
(cb) This Agreement has been duly executed Amendment and delivered by such Borrower. This Agreement is the Credit Agreement, as amended hereby, constitute the legal, valid and binding obligation obligations of such each Borrower enforceable against such Borrower in accordance with its their terms, except as the such enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(dc) No authorization or approval or other action by, Neither the execution and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for delivery by the due execution, delivery and performance by such Borrower Borrowers of this Amendment, nor the consummation of the transactions contemplated herein and in the Credit Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection as amended hereby, nor compliance with the provisions hereof or thereof will violate any Extension of Credit to law, rule, regulation, order, writ, judgment, injunction, decree or for award binding on the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower Company or any of its Significant Subsidiaries before or the Company’s or any courtSubsidiary’s articles of incorporation or by-laws or comparable constitutive documents or the provisions of any indenture, governmental agency instrument or arbitrator that agreement to which the Company or any of its Subsidiaries is reasonably likely a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than any Lien permitted by Section 7.3(F) of the Credit Agreement) in, of or on the Property of the Company or a Subsidiary pursuant to have a Material Adverse Effectthe terms of any such indenture, instrument or agreement, except any such violation, conflict or default as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, would not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any Governmental Authority, or any other third party, is required to authorize, or is required in connection with the execution or delivery of this Amendment or the performance of, or the legality, validity, binding effect or enforceability of, this Amendment or the Credit Agreement, as amended hereby.
(d) Each representation and each warranty by the Borrowers in Article VI of its ERISA Affiliates have complied the Credit Agreement, as amended hereby, is true and correct as of the date hereof in all material respects with ERISA respects, except to the extent that such representation or warranty expressly relates to an earlier date (in which case such representation and warranty shall be true and correct as of such earlier date).
(e) Upon the Internal Revenue Code. Such Borrower and each effectiveness of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plansthis Amendment, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established no Default or maintained, or to which contributions are or have been made or should be made according to Unmatured Default exists under the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleCredit Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Arvinmeritor Inc), Credit Agreement (Arvinmeritor Inc), Credit Agreement (Arvinmeritor Inc)
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary State of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits incorporation.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and the other Loan Documents to be delivered by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation charter or by-laws, laws or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been been, and each of the other Loan Documents to be delivered by it when delivered hereunder will have been, duly executed and delivered by such each Borrower. This Agreement is is, and each of the other Loan Documents when delivered hereunder will be, the legal, valid and binding obligation of such each Borrower party thereto enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this Agreement, except for such Governmental Approvals that may be required Agreement or the other Loan Documents to be obtained delivered by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerit.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental ActionClaim, affecting such Borrower the Holding Company or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) would be reasonably likely to have a Material Adverse EffectEffect or (ii) purports to affect the legality, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit validity or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation enforceability of this Agreement or included herein any Note or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light consummation of the circumstances under which they were, are, or will be made, not misleadingtransactions contemplated hereby.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 3 contracts
Samples: Credit Agreement (Scholastic Corp), Credit Agreement (Scholastic Corp), Credit Agreement (Scholastic Corp)
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing has the power and in good standing authority and legal right to execute and deliver this Amendment and to perform its obligations hereunder and under the laws of the jurisdiction in which it is incorporated or otherwise organized, Credit Agreement (as modified hereby). The execution and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, Amendment and the consummation performance of its obligations hereunder and under the transactions contemplated Credit Agreement (as modified hereby, are within such Borrower’s corporate powers, ) have been duly authorized by all necessary actionproper corporate proceedings, and do not contravene this Amendment and the Credit Agreement (ias modified hereby) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the constitute legal, valid and binding obligation obligations of such Borrower enforceable against such Borrower in accordance with its their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance insolvency or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(db) No authorization or approval or other action by, Neither the execution 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 such Borrower of this AgreementAmendment, except for nor the consummation of the transactions contemplated herein or in the Credit Agreement (as modified hereby), nor compliance with the provisions hereof or thereof will violate (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on such Governmental Approvals that may be Borrower, (ii) the articles or incorporation or by-laws or other organizational documents of such Borrower or (iii) the provisions of any indenture, instrument or agreement to which such Borrower is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of any Lien in, of or on the Property of such Borrower pursuant to the terms of any such indenture, instrument or agreement.
(c) No order, consent, adjudication, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, which has not been obtained by such Borrower, is required to be obtained by such Borrower in connection with any Extension the execution and delivery of this Amendment or the legality, validity, binding effect or enforceability of the Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such BorrowerAgreement (as modified hereby).
(ed) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results As of the operations of such Borrower date hereof and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 giving effect to the terms of this Amendment, (i) there exists no Default or Unmatured Default and (ii) the plan by any Borrower or any representations and warranties contained in Article V of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” the Credit Agreement (as modified hereby) are true and correct except to the extent any such term representation or warranty is defined stated to relate solely to an earlier date, in Section 4001(a)(3) which case such representation or warranty shall have been true and correct on and as of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclesuch earlier date.
Appears in 3 contracts
Samples: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants to each Lender and the Administrative Agent as followsof the date hereof:
(a) Such Each Borrower is a corporation has the legal power and authority to execute and deliver this Amendment and the officers of each Borrower executing this Amendment have been duly organized, validly existing authorized to execute and in good standing under deliver the laws of the jurisdiction in which it is incorporated or otherwise organized, same and each Significant Subsidiary of bind such Borrower is duly organized, validly existing and in good standing under with respect to the laws of the jurisdiction in which it is incorporated or otherwise organizedprovisions hereof.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement Amendment has been duly executed and delivered by such Borrower. each Loan Party that is a party hereto.
(c) This Amendment and the Credit Agreement is as modified hereby (the “Amended Agreement”) each constitutes the legal, valid and binding obligation obligations of such each Borrower and each other Loan Party, enforceable against such Borrower it in accordance with its terms, their terms (except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance reorganization, examinership, moratorium or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to general principles of equity (equity, regardless of whether such remedy is sought considered in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing).
(d) No authorization The execution and delivery by each Loan Party of this Amendment, the performance by each Loan Party of its obligations under the Amended Agreement and under the other Loan Documents to which they are parties and the consummation of the transactions contemplated by the Amended Agreement and the other Loan Documents: (i) do not require any consent or approval of, registration or filing with, or any 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 such Borrower of this AgreementGovernmental Authority, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will as have been obtained or made and will be are in full force and effect on or prior and except for filings necessary to perfect Liens created pursuant to the date Loan Documents, (ii) will not violate any material Requirement of Law applicable to any Loan Party or any of its Subsidiaries, (iii) will not violate or result in a default under any material indenture, agreement or other instrument binding upon any Loan Party or any of its Subsidiaries or the assets of any Extension Loan Party or any of Credit its Subsidiaries, or give rise to a right thereunder to require any payment to be made by any Loan Party or for any of its Subsidiaries, (iv) will not contravene the account terms of such Borrowerany certificates of incorporation, by-laws or other organizational or governing documents of any Loan Party, and (v) will not result in the creation or imposition of any Lien on any asset of any Loan Party or any of its Subsidiaries, except Liens created pursuant to the Loan Documents and Permitted Liens.
(e) There is no pending or threatened actionEach Borrower and each other Loan Party hereby reaffirms all covenants, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed representations and warranties made by it in the Disclosure DocumentsCredit Agreement and the other Loan Documents and agrees and confirms that all such representations and warranties are true and correct in all material respects as of the date of this Amendment (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date), and that any representation or warranty which is subject to any materiality qualifier is true and correct in all respects.
(f) The consolidated balance sheet Each Borrower has caused to be conducted a thorough review of the terms of this Amendment, the Credit Agreement and the other Loan Documents and each Borrower Borrower’s and its Consolidated Subsidiaries Subsidiaries’ operations since the Effective Date and, as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower date hereof and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 after giving effect to the terms hereof, no Default or Event of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which Default has occurred and is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecontinuing.
Appears in 3 contracts
Samples: Amendment No. 2 to Amended and Restated Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, State of Delaware. Each Principal Subsidiary and each Significant Subsidiary of such Borrower Restricted Affiliate is duly organizedincorporated, validly existing and in good standing under the laws of in the jurisdiction of its incorporation. The Company, each Principal Subsidiary and each Restricted Affiliate possess all corporate powers and all other authorizations and licenses necessary to engage in its business and operations as now conducted, the failure to obtain or maintain which it is incorporated or otherwise organizedwould have a Material Adverse Effect.
(b) The execution, delivery and performance by such (i) each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and the consummation its Notes (as applicable) and (ii) each Restricted Affiliate of the transactions contemplated hereby, its Restricted Affiliate Guaranty are within such Borrower’s 's or Restricted Affiliate's, as the case may be, corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (iA) such Borrower’s certificate of incorporation 's or Restricted Affiliate's, as the case may be, charter or by-laws, (ii) law binding or affecting such Borrower laws or (iiiB) any law or any material contractual restriction binding on or affecting such Borrower or any of its propertiesRestricted Affiliate, as the case may be.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by (i) such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable) or (ii) any Restricted Affiliate of its Restricted Affiliate Guaranty, except for such Governmental Approvals that may be filings necessary to comply with laws, rules, regulations and orders required in the ordinary course to be obtained by comply with ongoing obligations of such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained under Section 5.1(a) and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower(b).
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower EPNGC and its Consolidated consolidated Subsidiaries as at December 31, 20071996, and the related consolidated statements of income and cash flows of such Borrower EPNGC and its Consolidated consolidated Subsidiaries for the fiscal year then ended, accompanied reported on by an opinion of Deloitte Coopers & Touche LLPLybrxxx XXX, an independent registered public accounting firmaccountants, copies of each of which have been furnished to each Lenderthe Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of such Borrower EPNGC and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower EPNGC and its Consolidated consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since , and since December 31, 20071996, there has been no Material Adverse Change material adverse change in such condition or operations. The unaudited consolidated balance sheet of EPNGC and its consolidated Subsidiaries as of June 30, 1997, and the related consolidated statements of income and cash flows of EPNGC and its consolidated Subsidiaries for the six months then ended, certified by the chief financial officer of EPNGC, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of EPNGC and its consolidated Subsidiaries for the three months then ended, all in accordance with respect generally accepted accounting principles consistently applied (except as approved by the chief financial officer of EPNGC and as disclosed therein) and subject to such Borrowernormal year-end audit adjustments.
(gf) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Company and each Significant Subsidiary of such Borrower its Subsidiaries is in material compliance with all laws (including ERISA and Environmental Laws) laws, rules, regulations and orders of any governmental authority applicable to itit or its property except where the failure to comply, individually or in the aggregate, would not in the reasonable judgment of the Company be expected to result in a Material Adverse Effect.
(ig) No accumulated funding deficiency (as defined There is no action, suit or proceeding pending, or to the knowledge of any Borrower threatened, against or involving the Company, any Principal Subsidiary or any Restricted Affiliate in Section 302 any court, or before any arbitrator of ERISA and Section 412 any kind, or before or by any governmental body, which in the reasonable judgment of the Internal Revenue CodeCompany (taking into account the exhaustion of all appeals) that could reasonably be expected to would have a Material Adverse Effect, whether or not waivedwhich purports to affect the legality, exists with respect validity, binding effect or enforceability of this Agreement or the Notes.
(h) The Company, each Principal Subsidiary and each Restricted Affiliate have duly filed all tax returns required to any Plan. Such Borrower has not incurredbe filed, and does not presently expect have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the failure to incur, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to pay which would have a Material Adverse Effect. Such Borrower , unless and to the extent only that the same are being contested in good 51 47 faith and by appropriate proceedings by the Company, the appropriate Subsidiary or the appropriate Restricted Affiliate.
(i) The Company, each Principal Subsidiary and each Restricted Affiliate have good title to their respective properties and assets, free and clear of its ERISA Affiliates have all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not materially interfere with the business or operations of the Company, such Subsidiary or such Restricted Affiliate as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(j) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g).
(k) Each Plan has complied in all material respects with the applicable provisions of ERISA and the Internal Revenue Code. Such Borrower Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(l) The statement of assets and liabilities of each Plan and the statements of its Subsidiaries have complied changes in all material respects fund balance and in financial position, or the statement of changes in net assets available for plan benefits, for the most recent plan year for which an accountant's report with foreign law applicable respect to its Foreign Plans, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and such Plan has been established or maintainedprepared, copies of which report have been furnished to the Administrative Agent, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(m) Neither the Company nor any ERISA Affiliate has incurred, or is reasonably expected to which contributions are or have been made or should be made according incur, any Withdrawal Liability to the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is when aggregated with all other amounts required to be funded through paid to Multiemployer Plans in connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company.
(n) Neither the Company nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i). 52 48
(o) The Borrowers are not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance will be used to extend credit to others (other than to any Subsidiary of the Company) for the purpose of purchasing or carrying Margin Stock.
(p) No Borrower is an "investment company" or a trust "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(q) No Borrower is a "holding company" or other funding vehiclea "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(r) The borrowings by the Borrowers under this Agreement and the Notes and the applications of the proceeds thereof as provided herein will not violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. All representations and warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making of the Advances and the execution and delivery to the Lenders of this Agreement and the Notes.
Appears in 3 contracts
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso Natural Gas Co), Revolving Credit and Competitive Advance Facility Agreement (El Paso Energy Corp/De), Revolving Credit and Competitive Advance Facility Agreement (El Paso Tennessee Pipeline Co)
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant as follows:
(a) Such Borrower is a corporation duly organized, validly existing The representations and warranties contained in good standing under the laws Section 4.01 of the jurisdiction in which it is incorporated or otherwise organizedCredit Agreement, are true and each Significant Subsidiary of such Borrower is duly organized, validly existing correct on and in good standing under the laws as of the jurisdiction date hereof as though made on and as of the date hereof, other than such representations and warranties that, by their terms, refer to a date other than the date of this Amendment or a Borrowing; provided that such representation and warranty shall be deemed to be updated by such information relating to the matters described therein as and to the extent that Fresh Produce or the relevant Borrower shall have furnished such information in which it is incorporated or otherwise organizedwriting to the Administrative Agent.
(b) The execution, delivery and performance by such Borrower the Borrowers of this AgreementAmendment, and the consummation of the transactions contemplated Credit Agreement, as amended hereby, are within such Borrower’s corporate each Borrowers' powers, have been duly authorized by all necessary action, action and do not contravene (i) such any Borrower’s certificate of incorporation 's charter or by-laws, or equivalent governing documentation, as applicable, or (ii) any law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower any Borrower, or 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.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legalNo authorization, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this Amendment or the Credit Agreement, except for such Governmental Approvals that may be required as amended hereby.
(d) This Amendment and the Credit Agreement, as amended hereby, constitute, legal, valid and binding obligations of the Borrowers enforceable against the Borrowers in accordance with their respective terms, subject, however, to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on such enforceability of (i) any applicable bankruptcy, insolvency, reorganization, moratorium or prior to the date similar laws affecting creditors' rights generally and (ii) general principles of any Extension of Credit to equity (regardless whether such enforceability is considered in a proceeding in equity or for the account of such Borrowerat law).
(e) There No event has occurred and is no pending continuing which constitutes an Event of Default or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any would constitute an Event of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries Default but for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowerrequirement that notice be given or time elapse or both.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 3 contracts
Samples: Fourth Amendment and Consent (Fresh Del Monte Produce Inc), Fifth Amendment (Fresh Del Monte Produce Inc), Credit Agreement (Fresh Del Monte Produce Inc)
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing has the corporate or other power and in good standing authority and legal right to execute and deliver this Amendment and to perform its obligations hereunder and under the laws of the jurisdiction in which it is incorporated or otherwise organized, Loan Documents (as amended hereby). The execution and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment, and the consummation performance of its obligations under this Amendment and the transactions contemplated Loan Documents (as amended hereby, are within such Borrower’s corporate powers), have been duly authorized by all necessary action, and do not contravene proper corporate acts (i) such or analogous acts in the case of the Subsidiary Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties).
(cb) This Agreement has been duly executed Amendment and delivered by the Loan Documents (as amended hereby) to which such Borrower. This Agreement Borrower is a party constitute the legal, valid and binding obligation obligations of such Borrower enforceable against such Borrower in accordance with its their terms, except as the such enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(dc) No authorization or approval or other action by, Neither the execution 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 such Borrower of this AgreementAmendment, except for such Governmental Approvals that may be required to be obtained by such Borrower nor the consummation of the transactions contemplated herein and in connection the Loan Documents (as amended hereby), nor compliance with the provisions hereof or thereof will violate any Extension of Credit to law, rule, regulation, order, writ, judgment, injunction, decree or for award binding on the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower Company or any of its Significant Subsidiaries before or the Company’s or any courtSubsidiary’s articles of incorporation or by-laws or comparable constitutive documents or the provisions of any indenture, governmental agency instrument or arbitrator that agreement to which the Company or any of its Subsidiaries is reasonably likely a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than any Lien permitted by Section 7.3(F) of the Credit Agreement) in, of or on the Property of the Company or a Subsidiary pursuant to have a Material Adverse Effectthe terms of any such indenture, instrument or agreement, except any such violation, conflict or default as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, would not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each No order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, any Governmental Authority, or any other third party, is required to authorize, or is required in connection with the execution or delivery of its ERISA Affiliates have complied in all material respects with ERISA and this Amendment or the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plansperformance of, if any. As used hereinor the legality, validity, binding effect or enforceability of, this Amendment or the term “Plan” shall mean an “employee pension benefit plan” Loan Documents (as defined in Section 3 amended hereby).
(d) As of ERISA) which is the date hereof and has been established or maintained, or to which contributions are or have been made or should be made according after giving effect to the terms of this Amendment, (i) each representation and warranty by such Borrower set forth in the plan by any Credit Agreement and in the other Loan Documents to which such Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” party is true and correct in all material respects, except to the extent that such representation or warranty expressly relates to an earlier date (in which case such representation and warranty shall be true and correct as of such term is defined in Section 4001(a)(3earlier date) and (ii) no Default or Unmatured Default exists under the terms of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclethe Credit Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Meritor, Inc.), Credit Agreement (Meritor, Inc.), Credit Agreement (Meritor Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as to itself and its Subsidiaries as follows:
(a) Such Each Borrower is a corporation duly organizedorganized or validly formed, validly existing and (if applicable) in good standing under the laws of the jurisdiction State of Delaware and has all corporate or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals the failure to have which it is incorporated could not reasonably be expected to have a material adverse effect on the business, assets, condition or otherwise organized, and each Significant Subsidiary operation of such Borrower and its Subsidiaries taken as a whole. Each Subsidiary of each Borrower is duly organizedorganized or validly formed, validly existing and (if applicable) in good standing under the laws of its jurisdiction of incorporation or formation, except where the jurisdiction failure to be so organized, existing and in good standing could not reasonably be expected to have a material adverse effect on the business, assets, condition or operations of such Borrower and its Subsidiaries taken as a whole. Each Subsidiary of a Borrower has all corporate powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals the failure to have which it is incorporated could not reasonably be expected to have a material adverse effect on the business, assets, condition or otherwise organizedoperation of such Borrower and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by such each Borrower of this Agreement, Agreement and the Notes and the consummation of the transactions contemplated hereby, by this Agreement are within such Borrower’s 's corporate or limited liability company powers, have been duly authorized by all necessary corporate or limited liability company action, and do not contravene (i) such Borrower’s certificate of incorporation or 's charter, by-laws, or formation agreement, or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower and will not result in or require the creation or imposition of any Lien prohibited by this Agreement. At the time of each borrowing of any Advance by a Borrower, such borrowing and the use of the proceeds of such Advance will be within such Borrower's corporate or limited liability company powexx, xxxx xxxe been duly authorized by all necessary corporate or limited liability company action, will not contravene (i) such Borrower's charter, by-laws, or formation agreement, or (ii) law or any contractual restriction binding on or affecting such Borrower and will not result in or require the creation or imposition of its propertiesany Lien prohibited by this Agreement.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this Agreement or the Notes or the consummation of the transactions contemplated by this Agreement. At the time of each borrowing of any Advance by a Borrower, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body will be required for such borrowing or the use of the proceeds of such Advance.
(d) This Agreement has been duly executed and delivered by each Borrower. This Agreement is the legal, valid and binding obligation of each Borrower enforceable against each Borrower in accordance with its terms, except for as such Governmental Approvals that enforceability may be required to be obtained limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by general principles of equity. The A Notes of each Borrower are, and when executed the B Notes of such Borrower will be, the legal, valid and binding obligations of such Borrower enforceable against such Borrower in connection accordance with their respective terms, except as such enforceability may be limited by any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(fi) The consolidated Consolidated and consolidating balance sheet sheets of each Borrower TWC and its Consolidated Subsidiaries as at December 31, 20071996, and the related consolidated Consolidated and consolidating statements of income and cash flows of such Borrower TWC and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each LenderBank, and the Consolidated and consolidating balance sheets of TWC and its Subsidiaries as at March 31, 1997, and the related Consolidated and consolidating statements of income and cash flows of TWC and its Subsidiaries for the three months then ended, duly certified by an authorized financial officer of TWC, copies of which have been furnished to each Bank, fairly present present, subject, in the consolidated case of such balance sheets as at March 31, 1997, and such statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated and consolidating financial condition of such Borrower TWC and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated and consolidating results of the operations of such Borrower TWC and its Consolidated Subsidiaries for the period year and three month period, respectively, ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. Since December March 31, 20071997, there has been no Material Adverse Change with respect to such Borrowermaterial adverse change in the condition or operations of TWC or its Subsidiaries.
(gii) No written statementThe consolidating balance sheets of TWC and its Subsidiaries as at December 31, information1996, reportand March 31, financial statement1997, exhibit or schedule furnished by or on behalf referred to in Section 4.01(e)(i), and the related consolidating statements of such Borrower income and cash flows of TWC and its Subsidiaries for the fiscal year and three months, respectively, then ended referred to in Section 4.01(e)(i), to the Administrative Agentextent such balance sheets and statements pertain to NWP, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements thereinfairly present (subject, in the light case of such balance sheet as at March 31, 1997 and such statements of income and cash flows for the circumstances under which they werethree months then ended, areto year-end audit adjustments) the Consolidated financial condition of NWP and its Subsidiaries as at such dates and the Consolidated results of operations of NWP and its Subsidiaries for the year and three month period, respectively, ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since March 31, 1997, there has been no material adverse change in the condition or will be made, not misleadingoperations of NWP or its Subsidiaries.
(hiii) Except The Consolidated balance sheet of WPL and its Subsidiaries as disclosed at December 31, 1996, and the related Consolidated statement of income and cash flows of WPL and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, and the Consolidated balance sheet of WPL and its Subsidiaries as at March 31, 1997, and the related Consolidated statement of income and cash flows of WPL and its Subsidiaries for the three months then ended, duly certified by an authorized financial officer of WPL, copies of which have been furnished to each Bank, fairly present, subject, in the Disclosure Documents, such Borrower and each Significant Subsidiary case of such Borrower is balance sheet as at March 31, 1997, and such statement of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of WPL and its Subsidiaries as at such dates and the Consolidated results of operations of WPL and its Subsidiaries for the year and three month period, respectively, ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since March 31, 1997, there has been no material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders adverse change in the condition or operations of any governmental authority applicable to itWPL or its Subsidiaries.
(iiv) No accumulated funding deficiency (The Consolidated balance sheet of TGPL and its Subsidiaries as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effectat December 31, whether or not waived, exists with respect to any Plan. Such Borrower has not incurred1996, and does not presently expect the related Consolidated statement of income and cash flows of TGPL and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to incureach Bank, 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower Consolidated balance sheet of TGPL and each of its Subsidiaries as at March 31, 1997, and the related Consolidated statement of income and cash flows of TGPL and its Subsidiaries for the three months then ended, duly certified by an authorized financial officer of TGPL, copies of which have complied been furnished to each Bank, fairly present, subject, in all material respects with foreign law applicable the case of such balance sheet as at March 31, 1997, and such statement of income and cash flows for the three months then ended, to its Foreign Plans, if any. As used hereinyear-end audit adjustments, the term “Plan” shall mean an “employee pension benefit plan” (Consolidated financial condition of TGPL and its Subsidiaries as defined at such dates and the Consolidated results of operations of TGPL and its Subsidiaries for the year and three month period, respectively, ended on such dates, all in Section 3 of ERISA) which is and accordance with generally accepted accounting principles consistently applied. Since March 31, 1997, there has been established no material adverse change in the condition or maintainedoperations of TGPL or its Subsidiaries.
(v) The Consolidated balance sheet of TGT and its Subsidiaries as at December 31, or to 1996, and the related Consolidated statement of income and cash flows of TGT and its Subsidiaries for the fiscal year then ended, copies of which contributions are or have been made furnished to each Bank, and the Consolidated balance sheet of TGT and its Subsidiaries as at March 31, 1997, and the related Consolidated statement of income and cash flows of TGT and its Subsidiaries for the three months then ended, duly certified by an authorized financial officer of TGT, copies of which have been furnished to each Bank, fairly present, subject, in the case of such balance sheet as at March 31, 1997, and such statement of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of TGT and its Subsidiaries as at such dates and the Consolidated results of operations of TGT and its Subsidiaries for the year and three month period, respectively, ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since March 31, 1997, there has been no material adverse change in the condition or should be made according to the terms operations of the plan by any Borrower TGT or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleSubsidiaries.
Appears in 3 contracts
Samples: Credit Agreement (Williams Communications Group Inc), Credit Agreement (Williams Communications Group Inc), Credit Agreement (Williams Companies Inc)
Representations and Warranties of the Borrowers. Each In order to induce the Lenders and the Administrative Agent to enter into this Amendment, each Borrower hereby represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, Amendment and the consummation of the transactions contemplated hereby, Amended Credit Agreement are within such Borrower’s corporate powers, organizational powers and have been duly authorized by all necessary organizational action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(cb) This Agreement Amendment has been duly executed and delivered by such Borrower. This Borrower and this Amendment and the Amended Credit Agreement is constitute the legal, valid and binding obligation obligations of such Borrower Borrower, enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to general principles of equity (equity, regardless of whether such remedy is sought considered in a proceeding in equity or at law.
(c) The execution, delivery and subject performance of this Amendment and the Amended Credit Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries or any order of any Governmental Authority, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise to requirements a right thereunder to require any payment to be made by the Borrower or any of reasonablenessits Subsidiaries, good faith and fair dealing(iv) will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower As of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower hereof and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 after giving effect to the terms of this Amendment, (i) no Default or Event of Default has occurred and is continuing and (ii) the plan by representations and warranties set forth in the Amended Credit Agreement are true and correct in all material respects, except for any Borrower or any representation and warranty made as of its ERISA Affiliates. The term “Multiemployer Plan” a specific date, in which case such representation and warranty shall mean any Plan which is a “multiemployer plan” (have been true and correct as of such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicledate.
Appears in 3 contracts
Samples: Credit Agreement (Masco Corp /De/), Credit Agreement (Masco Corp /De/), Credit Agreement (Masco Corp /De/)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Each Borrower is a corporation and each of its Significant Subsidiaries (i) are Persons duly organized, validly existing and and, to the extent such concept is applicable in the jurisdiction of organization of such Borrower or such Subsidiary, in good standing under the laws of the jurisdictions of their respective organization, (ii) are duly qualified and, to the extent such concept is applicable in such jurisdiction, in good standing as foreign corporations (or the equivalent thereof) in each other jurisdiction in which it is incorporated they own or otherwise organizedlease property or in which the conduct of their respective businesses requires them to so qualify or be licensed, except where the failure to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and each Significant Subsidiary of such Borrower is duly organized, validly existing (iii) have all requisite power and in good standing under the laws of the jurisdiction in which it is incorporated authority to own or otherwise organizedlease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and its Notes, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate 's powers, have been duly authorized by all necessary action (including, without limitation, all necessary stockholders' action), and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-lawslaws (or similar organizational documents), (ii) law binding any law, statute, rule or affecting such Borrower regulation or any order, writ, judgment, injunction, decree, determination or award or (iii) any contractual restriction contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Borrower Borrower, any of its Subsidiaries or any of its propertiestheir properties or assets.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body Governmental Authority or any other third party is required for the due execution, delivery and performance by such any Borrower of this AgreementAgreement or any of its Notes, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account consummation of such Borrowerany of the transactions contemplated hereby, each of which Governmental Approvals will except as have been obtained or made and will be are in full force and effect on or prior effect.
(d) This Agreement has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by each Borrower intended to be a party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Borrower intended to be a party thereto, enforceable against such Borrower in accordance with their respective terms, except to the date extent that the enforceability thereof may be limited by the effect of any Extension of Credit applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or for the account affecting creditors' rights generally or by general principles of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any The most recently completed annual Financial Statements of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower Company and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firmSubsidiaries, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower the Company and its Consolidated Subsidiaries as at the date of such date Financial Statements and the consolidated results of the operations of such Borrower the Company and its Consolidated Subsidiaries for the period fiscal year of the Company ended on the date of such dateFinancial Statements, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to in effect at the time such BorrowerFinancial Statements were prepared.
(gf) No written statement, All information, reportexhibits and reports (other than financial statements, financial statementanalysts' reports, exhibit or schedule projections and assumptions) furnished by or on behalf of such each Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication negotiation of, or negotiation of pursuant to the terms of, this Agreement or included herein or delivered pursuant hereto contained, contains, or will any of its Notes do not contain any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit to state any a material fact necessary to make the statements thereincontained therein not misleading, in the light of the circumstances under which they wereany such statements were made.
(g) There is no action, aresuit, investigation, litigation or will proceeding (including, without limitation, any Environmental Action) against or in any other way affecting any Borrower or any of its Subsidiaries or any of its respective properties or businesses pending or, to the best knowledge of such Borrower or any of its Subsidiaries, threatened before any court, Governmental Authority or arbitrator that (i) either individually or in the aggregate, could reasonably be madeexpected to have a Material Adverse Effect or (ii) purports to adversely affect the legality, not misleadingvalidity or enforceability of this Agreement or any of its Notes or the consummation of the transactions contemplated hereby.
(h) Except as disclosed None of the Borrowers is engaged in the Disclosure Documentsbusiness of extending credit for the purpose of purchasing or carrying "margin stock" (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders no proceeds of any governmental authority applicable Revolving Credit Advance or any Discounted Note will be used to itpurchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) Neither any Borrower nor any of its Subsidiaries is an "investment company", or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company" (each as defined in the Investment Company Act of 1940, as amended). Neither the making of any Revolving Credit Advances nor the purchase of any Discounted Notes nor the application of the proceeds or the repayment or repurchase thereof by any Borrower, nor the consummation of any of the other transactions contemplated hereby, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(j) No accumulated funding deficiency ERISA Event has occurred or could reasonably be expected to occur with respect to any Plan that when aggregated with any and all other ERISA Events that have occurred or could reasonably be expected to occur with respect to any Plan, has resulted or could reasonably be expected to result in liability of any Borrower or any ERISA Affiliate that exceeds $20,000,000 (or the equivalent thereof in one or more foreign currencies) in the aggregate.
(k) As of the last annual actuarial valuation date, the funded current liability percentage, as defined in Section 302 302(d)(8) of ERISA, of each Plan exceeds 60 percent, and there has been no material adverse change in the funding status of any such Plan since such date; provided, however, that no breach of this Section 4.01(k) shall be deemed to have occurred unless the Insufficiency with respect to any such Plan exceeds $5,000,000 (or the equivalent thereof in one or more foreign currencies).
(l) Neither any Borrower nor any ERISA Affiliate (i) has incurred or could reasonably be expected to incur any Withdrawal Liability with respect to any Multiemployer Plan or (ii) 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, to the knowledge of any Borrower, no such Multiemployer Plan could reasonably be expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, that has resulted or could reasonably be expected to result in a liability of any Borrower or any ERISA Affiliate that exceeds $20,000,000 (or the equivalent thereof in one or more foreign currencies) in the aggregate with respect to clauses (i) and (ii) of this Section 412 4.01(l).
(m) Except as set forth on Schedule 4.01 hereto, (i) the operations and properties of each Borrower and each of its Subsidiaries comply with all applicable Environmental Laws and Environmental Permits, except to the Internal Revenue Codeextent the failure to so comply, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; (ii) all Environmental Actions against any Borrower or any of its Subsidiaries for noncompliance with such Environmental Laws and Environmental Permits that have been resolved have been resolved without any ongoing obligations or costs that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect; and (iii) to the best knowledge of any Borrower or any of its Subsidiaries, whether no circumstances exist that (A) could form the basis of an Environmental Action against such Borrower or not waivedany of its Subsidiaries that, exists with respect either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (B) could cause any of their respective properties to be subject to any Plan. Such Borrower has not incurredrestrictions on ownership, and does not presently expect to incuroccupancy, use or transferability under any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that Environmental Law that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plans.
(n) Except as set forth on Schedule 4.01 hereto, if any. As used herein, the term “Plan” shall mean 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 there have been made no releases, discharges or should be made according to the terms disposals of the plan Hazardous Materials on any property owned or operated by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean Subsidiaries or, to the best knowledge of such Borrower or any Plan which such Subsidiary, on any property formerly owned or operated by any Borrower or any of its Subsidiaries that (taking into account, among other things, the reasonable likelihood of an adverse determination and the availability of contributions from other potentially responsible parties), either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(o) Except as set forth on Schedule 4.01 hereto, neither any Borrower 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 Authority or the requirements of any Environmental Law, that, either individually or in the aggregate, could reasonably be expected to have a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pensionMaterial Adverse Effect; and all Hazardous Materials generated, profit-sharingused, deferred compensationtreated, handled or stored at, or other employee benefit plantransported to or from, program any property owned or arrangement maintained operated by any entity subsidiary whichBorrower or any of its Subsidiaries have been disposed of in a manner that, either individually or in the aggregate, could not reasonably be expected (taking into account, among other things, the reasonably likelihood of an adverse determination and the availability of contributions from other potentially responsible parties) to have a Material Adverse Effect.
(p) The Revolving Credit Advances, the Discounted Notes and all related obligations of each Borrower under applicable local foreign lawthis Agreement and its Notes rank pari passu with all other unsecured obligations of such Borrower that are not, is required by their terms, expressly subordinate to be funded through a trust or such other funding vehicleobligations of such Borrower.
Appears in 3 contracts
Samples: 364 Day Credit Agreement (Black & Decker Corp), Credit Agreement (Black & Decker Corp), 364 Day Credit Agreement (Black & Decker Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of its obligations in connection with this Agreement, and the consummation of the transactions contemplated hereby, Amendment are within such Borrower’s its corporate (or other organizational) powers, have been duly authorized by all necessary action, corporate (or other organizational) action and do not contravene and will not (i) such Borrower’s violate any provision of its articles or certificate of incorporation or by-lawsbylaws or similar organizing or governing documents of such Borrower, (ii) law binding or affecting contravene any Applicable Law which is applicable to such Borrower or Borrower, (iii) conflict with, result in a breach of or constitute (with notice, lapse of time or both) a default under any contractual restriction binding on material indenture or affecting instrument or other material agreement to which such Borrower is a party, by which it or any of its propertiesproperties is bound or to which it is subject, or (iv) except for the Liens granted in favor of the Administrative Agent pursuant to the Security Documents, result in or require the creation or imposition of any Lien upon any of its properties or assets, except, in the case of clauses (ii) and (iii) above, to the extent such contraventions, conflicts, breaches or defaults could not reasonably be expected to have a Material Adverse Effect.
(cb) This Agreement Such Borrower has been duly taken all necessary corporate (or other organizational) action to execute, deliver and perform this Amendment and has validly executed and delivered by such Borrowereach of this Amendment. This Agreement is Amendment constitutes the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as to the extent that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ ' rights in generalgenerally, and except as the availability of the remedy of specific performance is subject to by general equitable principles or by principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(dc) No material consent, approval, authorization or approval or other action by, and no notice to to, or registration or filing with, any governmental authority Governmental Authority or regulatory body other Person is or any other third party is will be required for as a condition to or otherwise in connection with the due execution, delivery and performance by such Borrower of this Agreement, Amendment except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will as have been obtained or made and will be are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents.
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Loan Documents are true and correct in all material respects on or prior to and as of the date of any Extension of Credit to or for the account hereof as though made on and as of such Borrowerdate (other than any such representations or warranties that, by their terms, refer to a specific date, in which case as of such specific date).
(e) There is no pending No Default or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any Event of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely Default shall exist immediately prior to have a Material Adverse Effect, except as disclosed in the Disclosure Documentsand after giving effect to this Amendment.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 3 contracts
Samples: Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower Each Loan Party and each of its Subsidiaries (i) is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedof its organization, and each Significant Subsidiary of such Borrower (ii) is duly organized, validly existing qualified and in good standing under the laws of the as a foreign corporation or limited liability company in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. Each of the Loan Parties has all of the requisite power and authority, and the legal right, to execute and deliver each of the Loan Documents and the Related Documents to which it is incorporated or otherwise organizedis to be a party, to perform all of its Obligations hereunder and thereunder and to consummate the Transaction and all of the other transactions contemplated hereby and thereby.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its organization, the number and type of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party's Subsidiaries has been validly issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those created under the Collateral Documents.
(c) The execution, delivery and performance by such Borrower each Loan Party of this Agreementeach Transaction Document to which it is or is to be a party, and the consummation of the transactions contemplated herebyTransaction, are within such Borrower’s Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) contravene such Borrower’s certificate of incorporation Loan Party's charter or by-lawsbylaws, (ii) law binding violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or affecting such Borrower or award, (iii) other than Debt scheduled for repayment on the date of the Initial Extension of Credit, conflict with or result in the breach of, or constitute a default or, except as set forth in the attached Schedule 4.01(c)(iii), require any contractual restriction payment to be made under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Borrower any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its properties.
(c) This Agreement has been duly executed and delivered by Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such Borrower. This Agreement is the legallaw, valid and binding obligation rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Borrower enforceable against such Borrower in accordance with its termscontract, except as the enforceability thereof may be limited by bankruptcyloan agreement, insolvencyindenture, fraudulent conveyance mortgage, deed of trust, lease or other similar laws affecting instrument, the enforcement violation or breach of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in which could have a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingMaterial Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by such Borrower any Loan Party of this Agreementany Transaction Document to which it is or is to be a party, or for the consummation of the Transaction, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (iv) the exercise by any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrowerauthorizations, each approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which Governmental Approvals will have been obtained duly obtained, taken, given or made and will be are in full force and effect on or prior to (other than the approvals by certain state public utility commissions listed in the attached Schedule 4.01(d) that have not been obtained as of the date hereof but the failure to obtain such approvals either individually or in the aggregate could not be expected to have a Material Adverse Effect). Notwithstanding the foregoing, it is understood that (i) no regulatory approvals have been obtained in connection with (x) the pledge of shares of any Extension regulated entity or (y) the granting of Credit additional collateral in certain circumstances as contemplated by Section 5.01(j)(I) and (ii) as of the date hereof no regulatory approvals have been obtained or are being sought in connection with the possible exercise of remedies under this Agreement or any of the Collateral Documents. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or for otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The acquisition and the account of such BorrowerMerger have been consummated in accordance with the Merger Agreement and applicable law.
(e) This Agreement has been, and each other Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each other Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, proceeding affecting any Environmental Action, affecting such Borrower Loan Party or any of its Significant Subsidiaries pending or, to the best knowledge of any Loan Party, threatened before any court, governmental agency or arbitrator of any kind that is (i) either individually or in the aggregate, could be reasonably likely to have a Material Adverse EffectEffect or (ii) in which there is a reasonable likelihood of an adverse determination and which purports to affect the legality, except as disclosed in validity or enforceability of any Transaction Document or the Disclosure Documentsconsummation of the Transaction, any of the Loan Documents or the Related Documents or any of the other transactions contemplated hereby.
(fg) The consolidated Consolidated balance sheet sheets of each Borrower CBI, the Company and its Consolidated their respective Subsidiaries as at December 31, 20071998, and the related consolidated Consolidated and consolidating, if any, statements of income and Consolidated statement of cash flows of such Borrower the CBI, the Company and its Consolidated their respective Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of Deloitte & Touche LLPPriceWaterhouseCoopers, an LLP independent registered public accounting firmaccountants, and the Consolidated and consolidating, if any, balance sheets of CBI, the Company and their respective Subsidiaries as at June 30, 1999, and the related Consolidated and consolidating statements of income and Consolidated statement of cash flows of CBI, the Company and their respective Subsidiaries for the six months then ended, duly certified by the Chief Financial Officer of CBI and the Company, respectively, copies of each of which have been furnished to each LenderLender Party, fairly present the consolidated Consolidated and consolidating financial condition of CBI, the Company and their respective Subsidiaries as at such Borrower dates and the Consolidated and consolidating results of operations of CBI, the Company and their respective Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 1998, there has been no Material Adverse Change except as disclosed in the Form S-4 of CBI filed with the Securities and Exchange Commission on September 13, 1999.
(h) The Consolidated pro forma balance sheet of CBI and its Subsidiaries as at the Closing Date, and the related Consolidated and consolidating pro forma statements of income and cash flows of CBI and its Subsidiaries for the nine months then ended, certified by the Chief Financial Officer of CBI, copies of which have been furnished to each Lender Party, fairly present the Consolidated and consolidating pro forma financial condition of CBI and its Subsidiaries as at such date and the consolidated Consolidated and consolidating pro forma results of the operations of such Borrower CBI and its Consolidated Subsidiaries for the period ended on such date, in each case giving effect to the Transaction, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such BorrowerGAAP.
(gi) No written statementThe Consolidated and consolidating forecasted balance sheets, statements of income and statements of cash flows of CBI and its Subsidiaries delivered to the Lender Parties pursuant to Section 3.01(a)(xiii) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, CBI's best estimate of its future financial performance.
(j) Neither the Information Memorandum nor any other information, report, financial statement, exhibit or schedule report furnished by or on behalf of such Borrower any Loan Party to the Administrative Agent, any Agent or any Lender or any LC Issuing Bank Party in connection with the negotiation and syndication of the Loan Documents or negotiation pursuant to the terms of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain the Loan Documents contained any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit omitted to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, made therein not misleading.
(hk) Except as disclosed No Borrower is engaged in the Disclosure Documentsbusiness of extending credit for the purpose of purchasing or carrying Margin Stock, such Borrower and following the application of the proceeds of each Significant Subsidiary Advance or drawing under each Letter of such Borrower is Credit, not more than 25% of the value of the assets (of CBI and its Subsidiaries on a Consolidated basis) subject to the provisions of Section 5.02(a) or 5.02(e) or subject to any restriction contained in material compliance with all laws (including ERISA any agreement or instrument between CBI and Environmental Laws) rules, regulations and orders any Lender Party or any Affiliate of any governmental authority applicable Lender Party relating to it.
(iDebt within the scope of 7.01(e) No accumulated funding deficiency (as defined in will be Margin Stock. For purposes of this Section 302 4.01(k), "assets" of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower CBI or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) Subsidiaries includes, without limitation, treasury stock of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleCBI that has not been retired.
Appears in 2 contracts
Samples: Credit Agreement (Cincinnati Bell Inc /Oh/), Credit Agreement (Broadwing Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated State of New York or otherwise organizedDelaware, as the case may be, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing qualified to do business under the laws of the jurisdiction such other jurisdictions in which it is incorporated or otherwise organizedits failure to so qualify could have a Material Adverse Effect.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, Amendment (i) are within such Borrower’s corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (iA) such Borrower’s certificate Governing Documents, (B) any Requirement of incorporation Law or by-laws, (C) any Material Contract and (ii) law binding will not result in or affecting require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legalNo authorization, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 Governmental Authority or regulatory body or any other third party Person is required for the due execution, delivery and performance by such Borrower of this AgreementAmendment.
(d) This Amendment and the Loan Agreement as amended hereby constitute the legal, except for valid and binding obligations of such Governmental Approvals that may be required to be obtained by Borrower enforceable against such Borrower in connection accordance with any Extension their respective terms except as enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There Except as specified in Schedule 6.1(r) to the Loan Agreement and the litigation between Del Global and Jxxxxxx Xxxxxxx, there is no pending or or, to the best of such Borrower’s knowledge after due inquiry, threatened actionlitigation, suitcontested claim, investigation, litigation arbitration or proceeding, including, without limitation, any Environmental Action, affecting governmental proceeding by or against such Borrower or any of its Significant Subsidiaries before any court, governmental agency Governmental Authority or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed which individually or in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that aggregate could reasonably be expected to have a Material Adverse EffectEffect or which purports to affect the legality, whether validity or not waived, exists with respect to any Plan. Such Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV enforceability of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and this Amendment or the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” Loan Agreement as amended hereby.
(f) Except as defined specified in Section 3 of ERISA) which 1 hereof, no Default has occurred and 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecontinuing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Del Global Technologies Corp), Loan and Security Agreement (Del Global Technologies Corp)
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants to the Lenders as follows:
(a) Such Borrower is a corporation duly organized, validly existing the execution and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment, and the consummation performance of the transactions contemplated herebyAmended MSD Secured Note, are within such Borrower’s corporate powersthe Amended GA Secured Note, and the Amended Intercreditor Agreement (i) have been duly authorized by all proper and necessary action, and do not contravene (i) action of the board of directors of such Borrower’s certificate of incorporation or by-laws, ; and (ii) law binding do not and will not conflict with (x) any material provision of Law or affecting regulatory requirements to which such Borrower is subject, or (y) any charter, bylaw, stock provision, partnership agreement or other document pertaining to the organization, power or authority of such Borrower;
(b) there is no material outstanding decree, decision, judgment or order that has been issued by any court, Governmental Authority, agency or arbitration authority against such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.FCC Licenses;
(c) This Agreement has been duly executed (x) no Borrower is in default under or with respect to any Contractual Obligation of such Borrower that could, either individually or in the aggregate reasonably be expected to result in a Material Adverse Change; or (y) no consent or approval of any public authority or any other third party is required as a condition to the validity of this Amendment;
(d) each of this Amendment, the Amended MSD Secured Note, the Amended GA Secured Note, the Amended Intercreditor Agreement, each Note Document (as defined in the Amended MSD Secured Note), and delivered by such Borrower. This Agreement each Note Document (as defined in the Amended GA Secured Note) is the legal, valid and legally binding obligation of such Borrower Borrower, enforceable against such Borrower in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.;
(e) There is no pending the representations and warranties contained in Section 7.3 of the Amended MSD Secured Note and in Section 7.3 of the Amended GA Secured Note are true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed modified by materiality in the Disclosure Documents.text thereof) on and as of the date of this Amendment (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date); and
(f) The consolidated balance sheet no Default or Event of each Borrower Default has occurred and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borroweris continuing.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 2 contracts
Samples: Secured Notes and Intercreditor Agreement Amendment (Hc2 Holdings, Inc.), Secured Notes and Intercreditor Agreement (Hc2 Holdings, Inc.)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation Business Entity duly organizedformed, validly existing and and, if applicable, in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant State of Delaware. Each Principal Subsidiary of such Borrower is duly organizedorganized or formed, validly existing and and, if applicable, in good standing under the laws of in the jurisdiction of its organization or formation. The Company and each Principal Subsidiary possess all applicable Business Entity powers and all other authorizations and licenses necessary to engage in its\ business and operations as now conducted, the failure to obtain or maintain which it is incorporated or otherwise organizedwould have a Material Adverse Effect.
(b) The execution, delivery and performance by such each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and the consummation of the transactions contemplated hereby, its Notes (as applicable) are within such Borrower’s corporate Borrower"s applicable Business Entity powers, have been duly authorized by all necessary applicable Business Entity action, and do not contravene contravene
(iA) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower 's organizational documents or (iiiB) any law or any material contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable), except for those necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Governmental Approvals that may be required Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to be obtained by which it is a party (as applicable) when delivered hereunder shall constitute the legal, valid and binding obligations of each Borrower, enforceable against such Borrower in connection accordance with their respective terms, except as may be limited by any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower the Company and its Consolidated consolidated Subsidiaries as at December 31, 20071999, and the related consolidated statements of income and cash flows of such Borrower the Company and its Consolidated consolidated Subsidiaries for the fiscal year then ended, accompanied reported on by an opinion of Deloitte & Touche PricewaterhouseCoopers LLP, an independent registered public accounting firmaccountants, copies of each of which have been furnished to each Lenderthe Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of such Borrower the Company and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower the Company and its Consolidated consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles GAAP consistently applied. Since , and since December 31, 20071999, there has been no Material Adverse Change material adverse change in such condition or operations. The unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of March 31, 2000, and the related consolidated statements of income and cash flows of the Company and its consolidated Subsidiaries for the three months then ended, certified by the chief financial officer of the Company, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of the Company and its consolidated Subsidiaries for the three months then ended, all in accordance with respect GAAP consistently applied (except as approved by the chief financial officer of the Company and as disclosed therein) and subject to such Borrowernormal year-end audit adjustments.
(gf) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Company and each Significant Subsidiary of such Borrower its Subsidiaries is in material compliance with all laws (including ERISA and Environmental Laws) laws, rules, regulations and orders of any governmental authority applicable to itit or its property except where the failure to comply, individually or in the aggregate, would not in the reasonable judgment of the Company be expected to result in a Material Adverse Effect.
(ig) No accumulated funding deficiency (There is no action, suit or proceeding pending, or to the knowledge of any Borrower threatened, against or involving the Company or any Principal Subsidiary in any court, or before any arbitrator of any kind, or before or by any governmental body, existing as defined at the Effective Date which in Section 302 of ERISA and Section 412 the reasonable judgment of the Internal Revenue CodeCompany (taking into account the exhaustion of all appeals) that could reasonably be expected to would have a Material Adverse Effect, whether or not waivedwhich purports to affect the legality, exists with respect validity, binding effect or enforceability of this Agreement or the Notes.
(h) The Company and each Principal Subsidiary have duly filed all tax returns required to any Plan. Such Borrower has not incurredbe filed, and does not presently expect have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the failure to incurfile or pay which, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to as applicable, would have a Material Adverse Effect. Such Borrower , unless and to the extent only that the same are being contested in good faith and by appropriate proceedings by the Company or the appropriate Subsidiary.
(i) The Company and each Principal Subsidiary have good title to their respective properties and assets, free and clear of its ERISA Affiliates have all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not materially interfere with the business or operations of the Company or such Subsidiary as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(j) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g).
(k) Each Plan has complied in all material respects with the applicable provisions of ERISA and the Internal Revenue Code. Such Borrower Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(l) The statement of assets and liabilities of each Plan and the statements of its Subsidiaries have complied changes in all material respects fund balance and in financial position, or the statement of changes in net assets available for plan benefits, for the most recent plan year for which an accountant's report with foreign law applicable respect to its Foreign Plans, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and such Plan has been established or maintainedprepared, copies of which report have been furnished to the Administrative Agent, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(m) Neither the Company nor any ERISA Affiliate has incurred, or is reasonably expected to which contributions are or have been made or should be made according incur, any Withdrawal Liability to the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is when aggregated with all other amounts required to be funded through paid to Multiemployer Plans in connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company.
(n) Neither the Company nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is 42 47 reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i).
(o) No Borrower is an "investment company" or a trust "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(p) No Borrower is a "holding company" or other funding vehiclea "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(q) The borrowings by the Borrowers under this Agreement and the Notes and the applications of the proceeds thereof as provided herein will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. All representations and warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making of the Advances and the execution and delivery to the Lenders of this Agreement and the Notes.
Appears in 2 contracts
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso Energy Corp/De), Revolving Credit and Competitive Advance Facility Agreement (El Paso CGP Co)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation Business Entity duly organizedformed, validly existing and and, if applicable, in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant State of Delaware. Each Principal Subsidiary of such Borrower is duly organizedorganized or formed, validly existing and and, if applicable, in good standing under the laws of in the jurisdiction of its organization or formation. The Company and each Principal Subsidiary possess all applicable Business Entity powers and all other authorizations and licenses necessary to engage in its business and operations as now conducted, the failure to obtain or maintain which it is incorporated or otherwise organizedwould have a Material Adverse Effect.
(b) The execution, delivery and performance by such each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and the consummation of the transactions contemplated hereby, its Notes (as applicable) are within such Borrower’s corporate 's applicable Business Entity powers, have been duly authorized by all necessary applicable Business Entity action, and do not contravene (iA) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower 's organizational documents or (iiiB) any law or any material contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable), except for those necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Governmental Approvals that may be required Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to be obtained by which it is a party (as applicable) when delivered hereunder shall constitute the legal, valid and binding obligations of each Borrower, enforceable against such Borrower in connection accordance with their respective terms, except as may be limited by any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower the Company and its Consolidated consolidated Subsidiaries as at December 31, 20071999, and the related consolidated statements of income and cash flows of such Borrower the Company and its Consolidated consolidated Subsidiaries for the fiscal year then ended, accompanied reported on by an opinion of Deloitte & Touche PricewaterhouseCoopers LLP, an independent registered public accounting firmaccountants, copies of each of which have been furnished to each Lenderthe Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of such Borrower the Company and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower the Company and its Consolidated consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles GAAP consistently applied. Since , and since December 31, 20071999, there has been no Material Adverse Change material adverse change in such condition or operations. The unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of March 31, 2000, and the related consolidated statements of income and cash flows of the Company and its consolidated Subsidiaries for the three months then ended, certified by the chief financial officer of the Company, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of the Company and its consolidated Subsidiaries for the three months then ended, all in accordance with respect GAAP consistently applied (except as approved by the chief financial officer of the Company and as disclosed therein) and subject to such Borrowernormal year-end audit adjustments.
(gf) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Company and each Significant Subsidiary of such Borrower its Subsidiaries is in material compliance with all laws (including ERISA and Environmental Laws) laws, rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether it or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.property
Appears in 2 contracts
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso CGP Co), Revolving Credit and Competitive Advance Facility Agreement (Tennessee Gas Pipeline Co)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower and each Subsidiary Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the its jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedorganization.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment and the Loan Documents, as amended hereby, and the consummation by each Subsidiary Guarantor of the transactions contemplated herebyConsent and Confirmation attached hereto, are in each case within such BorrowerPerson’s corporate powers, have been duly authorized by all necessary action, and do not result in a default under or contravene (i) any such BorrowerPerson’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesOrganic Documents.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 Governmental Authority or regulatory body other Person (other than those that have been duly obtained or any other third party made and which are in full force and effect) is required for the due execution, delivery and or performance by such Borrower of this AgreementAmendment or any of the Loan Documents, except for such Governmental Approvals that may be required as amended hereby, to which it is or is to be obtained a party, or by such Borrower in connection with any Extension each Subsidiary Guarantor of Credit to or for the account of Consent and Confirmation attached hereto.
(d) This Amendment has been duly executed and delivered by such Borrower, and the Consent and Confirmation attached hereto has been duly executed and delivered by each Subsidiary Guarantor. This Amendment and each of the other Loan Documents, as amended hereby, to which Governmental Approvals will have been obtained such Borrower is a party, and will be in full force the Consent and effect on or prior to the date Confirmation attached hereto, are legal, valid and binding obligations of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any courtsuch Subsidiary Guarantor, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effectas applicable, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of enforceable against such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all entity in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
their respective terms (g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements thereinexcept, in the light of the circumstances under which they wereany case, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of ERISAequity). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 2 contracts
Samples: Credit Agreement (Chesapeake Corp /Va/), Credit Agreement (Chesapeake Corp /Va/)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such The execution and delivery by such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedthis Amendment, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, Amendment and the consummation of the transactions contemplated herebyAmended Agreement, are within such Borrower’s corporate powers, organizational powers and have been duly authorized by all necessary corporate and, if required, stockholder action, and do not contravene and will not (i) such Borrower’s certificate violate any Requirement of incorporation or by-lawsLaw, (ii) law violate or result in a default under any indenture, agreement or other instrument binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting upon such Borrower or any of its properties.
Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by such Borrower or any of its Subsidiaries, or (ciii) result in the creation or imposition of any Lien on any asset of such Borrower or any of its Subsidiaries. This Agreement Amendment has been duly executed and delivered by such Borrower. This .
(b) The execution and delivery by such Borrower of this Amendment, and the performance by such Borrower of this Amendment and the Amended Agreement, do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except as set forth in Section 7.01(g) of the Amended Agreement.
(c) Each of this Amendment and the Amended Agreement is the constitutes a legal, valid and binding obligation of such Borrower Borrower, enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to general principles of equity (equity, regardless of whether such remedy is sought considered in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(d) No authorization Default 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 such Borrower Event of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change Default with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which the Guarantor has occurred and is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecontinuing.
Appears in 2 contracts
Samples: Credit Agreement (Unisource Energy Corp), Credit Agreement (Unisource Energy Corp)
Representations and Warranties of the Borrowers. Each The Borrower Representative and each other Borrower hereby represents and warrants to the Administrative Agent, the Lenders as of the date hereof (determined immediately prior to giving effect to the Tenth Amendment Transactions), and the Tenth Amendment Incremental Tranche D Lenders as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Each Borrower is duly organized, validly existing authorized to execute and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.deliver this Amendment and to perform its obligations hereunder;
(b) The execution, delivery and performance by such each Borrower of this Agreement, Amendment and the consummation of the transactions contemplated hereby, are hereby is within such Borrower’s corporate powers, or other organizational power and have been duly authorized by all necessary actioncorporate or other organizational action (including by the Governing Board) and, and do not contravene (i) if required, action of the Equity Interest owners, of such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) . This Agreement Amendment has been duly executed and delivered by such Borrower. This Agreement is the each Borrower and constitutes a legal, valid and binding obligation of such Borrower each Borrower, enforceable against such each Borrower in accordance with its terms, except as the enforceability thereof may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to general principles of equity (equity, regardless of whether such remedy is sought considered in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.;
(dc) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due The execution, delivery and performance by such each Borrower of this Agreement, except for such Amendment and the consummation of the transactions contemplated hereby (i) do not require any Governmental Approvals that may be required to be obtained by except such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will as have been obtained or made and will be are in full force and effect on or prior effect, (ii) will not violate any applicable law, including any order of any Governmental Authority, in any material respect, except to the date of extent any Extension of Credit such violations, individually and in the aggregate, would not reasonably be expected to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have result in a Material Adverse Effect, (iii) will not violate the Organizational Documents of a Loan Party or any of its Subsidiaries and (iv) will not violate or result (alone or with notice or lapse of time, or both) in a default under any indenture or other agreement or instrument binding upon a Loan Party or any of its Subsidiaries or any of their assets, or give rise to a right thereunder to require any payment, repurchase or redemption to be made by a Loan Party or any of its Subsidiaries, or give rise to a right of, or result in, any termination, cancellation, acceleration or right of renegotiation of any obligation thereunder, in each case except to the extent that the foregoing, individually and in the aggregate, would not reasonably be expected to result in a Material Adverse Effect;
(d) The representations and warranties of the Borrowers contained in the Amended Credit Agreement, other than the representations set forth in Section 3.04(c) and Section 3.13 of the Amended Credit Agreement, the Collateral Agreement and in each other Loan Document qualified by materiality are true and correct, and those not so qualified are true and correct in all material respects as of the date hereof and after giving effect to this Amendment, in each case, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct (or true and correct in all material respects, as applicable) as of such earlier date);
(e) Except as disclosed by the Company to the Lenders or any of their Related Parties in writing prior to the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31date hereof, 2007since September 30, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 20072022, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit event or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, containscondition that has resulted, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could would reasonably be expected to have result, in a Material Adverse Effect, whether ; and
(f) No Default or not waived, Event of Default exists with respect or would result immediately after giving effect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” this Amendment (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 including consummation of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISATenth Amendment Transactions). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 2 contracts
Samples: Credit Agreement (Starry Group Holdings, Inc.), Credit Agreement (Starry Group Holdings, Inc.)
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers represents and warrants as to itself as follows:
(a) Such Borrower is a corporation corporation, general partnership or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation and is duly qualified and in which it is incorporated good standing in each jurisdiction wherein the failure to so qualify would have a material adverse effect on the financial condition or otherwise organizedresults of operations of such Borrower and its Subsidiaries, and each Significant Subsidiary taken as a whole. Each of the Subsidiaries of such Borrower is duly organized, organized and validly existing and in good standing under the laws of the its jurisdiction in which it is incorporated of incorporation or otherwise organizedformation.
(b) The execution, delivery and performance by such Borrower of this Agreementeach Loan Document to which it is a party delivered hereunder, and the consummation of the transactions contemplated hereby, are within such Borrower’s their respective corporate or other similar organization powers, have been duly authorized by all necessary corporate or other similar organization action, and do not contravene (i) such Borrower’s certificate of incorporation or their respective charter, by-laws, laws or other organizational documents or (ii) law binding or affecting such Borrower or (iii) any material contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this AgreementAgreement or any other Loan Document to which it is a party, except for any such Governmental Approvals that may be required to be authorizations, approvals, actions, notices or filings as have already been made or obtained and are in full force and effect.
(d) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by such Borrower in connection with any Extension of Credit party thereto. This Agreement is, and each other Loan Document to or for which it is a party when delivered hereunder will be, the account legal, valid and binding obligation of such Borrower, each of which Governmental Approvals will have been obtained and will be enforceable against it in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borroweraccordance with their respective terms.
(e) Except as disclosed in writing to the Agent prior to the Closing Date, since December 31, 2006, there has been no Material Adverse Change.
(f) There is no pending or overtly threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, proceeding affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is could reasonably likely be expected to have a Material Adverse Effectadversely affect the legality, except as disclosed in validity or enforceability of any Loan Document or the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results consummation of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertransactions contemplated hereby.
(g) No Such Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(h) Following application of the proceeds of each Advance, not more than 25% of the value of the assets (either of the Borrowers only or of the Borrowers and their Subsidiaries, taken as a whole) subject to the provisions of Section 5.02(a) will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(i) All written statement, information (other than financial information, reportprojections, financial statement, exhibit or schedule estimates and other forward looking statements) heretofore furnished by or on behalf of such Borrower to the Administrative Agent, any Lender Lenders for purposes of or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein any transaction contemplated hereby, taken as a whole, in each case as such written information may be amended, modified or delivered pursuant hereto containedsupplemented by it from time to time, contains, or will contain any is correct in all material misstatement of fact or intentionally omitted, omits, or will respects and does not omit to state any material fact or any fact necessary to make the statements therein, contained therein not materially misleading in the light of the circumstances under which they were, are, or will be such statements were made, not misleading.
(hj) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rulesnot an “investment company”, regulations and orders or a company “controlled” by an “investment company”, within the meaning of any governmental authority applicable to itthe Investment Company Act of 1940, as amended.
(ik) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 All of the Internal Revenue Code) that could reasonably be expected Advances and other obligations owing by such Borrower to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA the Agent and the Internal Revenue Code. Such Borrower Lenders under this Agreement and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plansthe Notes, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established rank pari passu or maintained, or senior to which contributions are or have been made or should be made according to the terms of the plan by any Borrower or any all of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclesenior unsecured indebtedness for money borrowed.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Procter & Gamble Co), Revolving Credit Agreement (Procter & Gamble Co)
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers hereby represents and warrants to the Lender, which representations and warranties shall survive the execution and delivery of this Amendment, that on and as followsof the date hereof and after giving effect to this Amendment:
(a) Such Borrower is a corporation duly organizedAs to each Borrower, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery delivery, and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, Amendment have been duly authorized by all necessary actionaction on the part of such Borrower.
(b) As to each Borrower, the execution, delivery, and do performance by such Borrower of this Amendment does not contravene and will not (i) such violate any provision of federal, state, or local law or regulation applicable to any Borrower’s certificate , the Governing Documents of incorporation any Borrower, or by-lawsany order, judgment, or decree of any court or other Governmental Authority binding on any Borrower, (ii) law binding conflict with, result in a breach of, or affecting such Borrower constitute (with due notice or lapse of time or both) a default under any material contractual obligation of any Borrower, (iii) result in or require the creation or imposition of any contractual restriction binding on Lien of any nature whatsoever upon any properties or affecting such Borrower assets of Borrower, other than Permitted Liens, or (iv) require any approval of any Borrower's interest holders or any approval or consent of its propertiesany Person under any material contractual obligation of any Borrower, other than consents or approvals that have been obtained and that are still in force and effect.
(c) This Agreement has been duly As to each Borrower, this Amendment and all other documents contemplated hereby, when executed and delivered by such Borrower. This Agreement is Borrower will be the legal, legally valid and binding obligation obligations of such Borrower Borrower, enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof enforcement may be limited by equitable principles or by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium, or other similar laws affecting the enforcement of relating to or limiting creditors’ ' rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(d) No authorization or approval or other action by, The representations 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 such Borrower warranties of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of the Borrowers set forth in the Credit Agreement and in the Loan Documents to which Governmental Approvals will have been obtained it is a party are true, correct and will be in full force complete on and effect on or prior as of the date hereof; provided that the references to the date of any Extension of Credit Agreement therein shall be deemed to or for include the account of such BorrowerCredit Agreement as amended by this Amendment.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results Each of the operations of Borrowers acknowledges that the Lender is specifically relying upon the representations, warranties and agreements contained in this Amendment and that such Borrower representations, warranties and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower agreements constitute a material inducement to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of entering into this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleadingAmendment.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 2 contracts
Samples: Credit Agreement (Easylink Services Corp), Credit Agreement (Easylink Services Corp)
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Amendment and the Credit Agreement, and the consummation of the transactions contemplated as amended hereby, are within such Borrower’s corporate powers, organizational powers and have been duly authorized by all necessary actionorganizational actions and, and do not contravene (i) such Borrower’s certificate of incorporation or by-lawsif required, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) actions by equity holders. This Agreement Amendment has been duly executed and delivered by such Borrower. This Agreement is Borrower and this Amendment and the Credit Agreement, as amended hereby, constitute the legal, valid and binding obligation obligations of such Borrower and are enforceable against such Borrower in accordance with its their terms, except as the enforceability thereof may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to general principles of equity (equity, regardless of whether such remedy is sought considered in a proceeding in equity or at law) , and subject to requirements of reasonableness, good faith and fair dealing.
(db) 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 The execution, delivery and performance by such Borrower of this Amendment and the Credit Agreement, as amended hereby, (a) do not require any material consent or material approval of, material registration or material filing with, or any other action by, any Governmental Authority, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will case as have been obtained or made and will be that are in full force and effect on or prior and except for filings required to perfect the Liens created pursuant to the date Loan Documents, (b) will not violate (i) any material law or material regulation or (ii) the charter, by-laws or other organizational documents of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before or (iii) any court, governmental agency or arbitrator that is reasonably likely material order of any Governmental Authority applicable to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then endedSubsidiaries, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all (c) will not violate in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact respect or intentionally omitted, omits, or will omit to state result in a default under any material fact necessary to make the statements thereinindenture, in the light of the circumstances under which they were, are, material agreement or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, other material instrument binding upon such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” Subsidiaries or its assets, or give rise to a right thereunder to require any material payment to be made by such Borrower or any of its Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of such Borrower or any of its Subsidiaries, other than Liens created under the Loan Documents and, with respect to the use of proceeds thereof, other than a Lien permitted by Section 6.02 of the Credit Agreement.
(c) As of the date hereof and after giving effect to the terms of this Amendment, (i) no Default or Event of Default shall mean any Plan have occurred and be continuing and (ii) the representations and warranties of (or made with respect to) such Borrower set forth in the Credit Agreement, as amended hereby, and each Loan Document to which it is a “multiemployer plan” party are true and correct in all material respects on and as of the date hereof (except to the extent that any such representation and warranty is stated to relate to a specific earlier date, in which case such representation and warranty shall be true and correct in all material respects as of such term is defined in Section 4001(a)(3) of ERISAearlier date). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 2 contracts
Samples: Credit Agreement (Belden Inc.), Credit Agreement (Belden Inc.)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction indicated with respect to it in which it is incorporated or otherwise organized, the recital of parties to this Amendment and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedLimited Waiver.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment and Limited Waiver and the Loan Documents, as amended hereby, to which it is or is to be a party, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (i) contravene such Borrower’s certificate of incorporation 's charter or by-laws, (ii) law binding violate any law, rule or affecting such Borrower regulation, or (iii) any contractual restriction order, writ, judgment, injunction, decree, determination or award, binding on or affecting such Borrower or any of its 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 such Borrower, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under any Loan Document, as amended hereby, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of such Borrower or any of its Subsidiaries.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and or performance by such Borrower of this AgreementAmendment and Limited Waiver or any of the Loan Documents, except for such Governmental Approvals that may be required as amended hereby, to which it is or is to be obtained a party.
(d) This Amendment and Limited Waiver has been duly executed and delivered by such Borrower. This Amendment and Limited Waiver and each of the other Loan Documents, as amended hereby, to which such Borrower in connection with any Extension of Credit to or for the account is a party are legal, valid and binding obligations of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting enforceable against such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertheir respective terms.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 2 contracts
Samples: Credit Agreement (Maxxam Inc), Credit Agreement (Scotia Pacific Co LLC)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows; provided, however, each B-2 Borrower, each B-3 Borrower and the Canadian Borrower represents and warrants solely with respect to itself:
(a) Such Borrower To the extent applicable under the laws of the jurisdiction of incorporation of each Loan Party, each Loan Party (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, (ii) is duly qualified and in good standing as a foreign corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not have a Material Adverse Effect and (iii) has all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. All of the outstanding capital stock of the Borrowers has been validly issued and is incorporated or otherwise organizedfully paid and non-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list as of the Existing Credit Agreement Effective Date of all Subsidiaries of each Loan Party, showing as of the Existing Credit Agreement Effective Date (as to each such Subsidiary) the jurisdiction of its incorporation, the number of shares of each class of capital stock authorized, and the number outstanding, on the Existing Credit Agreement Effective Date and the percentage of the outstanding shares of each Significant Subsidiary such class owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the Existing Credit Agreement Effective Date. All of the outstanding capital stock of all of such Borrower Subsidiaries to the extent owned by the Borrowers and their Subsidiaries has been validly issued, is fully paid and non-assessable and is owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those created under the Loan Documents. Each such Subsidiary (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, (ii) is duly qualified and in good standing as a foreign corporation in each other jurisdiction in which it is incorporated owns or otherwise organizedleases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not have a Material Adverse Effect and (iii) has all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(bc) The execution, delivery and performance by such Borrower each Loan Party of this Agreement, the Notes, each other Loan Document and each Related Document to which it is or is to be a party, and the consummation of the other transactions contemplated hereby, are within such Borrower’s Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) contravene such Borrower’s certificate of incorporation Loan Party's charter or by-lawsbylaws, (ii) law binding violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or affecting such Borrower or award, (iii) conflict with or result in the breach of, or constitute a default under, any contractual restriction loan agreement, indenture, mortgage, deed of trust or other instrument or material contract or material lease binding on or affecting such Borrower any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its properties.
(c) This Agreement has been duly executed and delivered by Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such Borrower. This Agreement is the legallaw, valid and binding obligation rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Borrower enforceable against such Borrower in accordance with its termsloan agreement, except as the enforceability thereof may be limited by bankruptcyindenture, insolvencymortgage, fraudulent conveyance deed of trust or other similar laws affecting instrument or material contract or material lease, the enforcement violation or breach of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in which would have a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingMaterial Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by such Borrower any Loan Party of this Agreement, except for such Governmental Approvals that may be required the Notes, any other Loan Document or any Related Document to which it is or is to be obtained by such Borrower in connection with any Extension of Credit to a party, or for the account transactions contemplated hereby, (ii) the grant by any Loan Party of such Borrowerthe Liens granted by it pursuant to the Collateral Documents, each (iii) the perfection or maintenance of the Liens created by the Collateral Documents (including the first priority nature thereof) or (iv) the exercise by the Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d), all of which Governmental Approvals will have been obtained duly obtained, taken, given or made and will be are in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowereffect.
(e) There is no pending or threatened actionThis Agreement has been, suitand each of the Notes, investigationeach other Loan Document and each Related Document when delivered hereunder will have been, litigation or proceedingduly executed and delivered by each Loan Party party thereto. This Agreement is, includingand each of the Notes, without limitationeach other Loan Document and each Related Document when delivered hereunder will be, any Environmental Actionthe legal, affecting valid and binding obligation of each Loan Party party thereto, enforceable against such Borrower or any of Loan Party in accordance with its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documentsterms.
(f) The consolidated Consolidated balance sheet of each Borrower Crompton Corp. and its Consolidated Subsidiaries as at December 3130, 20071995, and the related consolidated Consolidated statement of income and Consolidated statement of cash flows of Crompton Corp. and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG Peat Marwick LLP, independent public accountants, and the Consolidated balance sheet of Crompton Corp. and its Subsidiaries as at March 30, 1996, and the related Consolidated statement of income and Consolidated statement of cash flows of Crompton Corp. and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of Crompton Corp., copies of which have been furnished to each Lender Party, fairly present, subject, in the case of said balance sheet as at March 30, 1996, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of such Borrower Crompton Corp. and its Subsidiaries as at such dates and the Consolidated results of operations of Crompton Corp. and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 30, 1995, there has been no Material Adverse Change.
(g) The Consolidated balance sheet of Uniroyal Corp. and its Subsidiaries as at October 1, 1995, and the related Consolidated statement of income and Consolidated statement of cash flows of Uniroyal Corp. and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firmaccountants, and the Consolidated balance sheet of Uniroyal Corp. and its Subsidiaries as at March 31, 1996, and the related Consolidated statement of income and Consolidated statement of cash flows of Uniroyal Corp. and its Subsidiaries for the six months then ended, duly certified by the chief financial officer of Uniroyal Corp., copies of each of which have been furnished to each LenderLender Party, fairly present present, subject, in the consolidated case of said balance sheet as at March 31, 1996, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated financial condition of such Borrower Uniroyal Corp. and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of such Borrower Uniroyal Corp. and its Subsidiaries for the period ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since October 1, 1995, there has been no Material Adverse Change.
(h) The Consolidated pro forma balance sheet of Crompton Corp. and its Subsidiaries and the related Consolidated pro forma statements of income and cash flows of Crompton Corp. and its Subsidiaries, in each case contained in the Proxy Statement dated July 23, 1996, copies of which have been furnished to each Lender Party, fairly present the Consolidated pro forma financial condition of Crompton Corp. and its Subsidiaries as at such date and the Consolidated pro forma results of operations of Crompton Corp. and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect each case giving effect to such Borrowerthe Merger and the other transactions contemplated hereby.
(gi) The Consolidated and consolidating forecasted balance sheets, income statements and cash flows statements of Crompton Corp. and its Subsidiaries delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in the light of conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, Crompton Corp.'s good faith estimate of its future financial performance.
(j) No written statement, information, report, financial statement, exhibit or schedule report furnished by or on behalf of such Borrower any Loan Party to the Administrative Agent, Agent or any Lender or any LC Issuing Bank Party in connection with the syndication or negotiation of this Agreement the Loan Documents or included herein or delivered pursuant hereto contained, contains, or will contain to the terms of the Loan Documents contained any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit omitted to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, made therein not misleading.
(hk) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of this Agreement, any Note, any other Loan Document or any Related Document or the consummation of the transactions contemplated hereby, and there has been no material adverse change in the status, or financial effect on any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(f).
(l) No proceeds of any Advance, any Drawing or drawings under any Letter of Credit will be used to acquire any equity security of a class that is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(m) No Borrower is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance, any Drawing or drawings under any Letter of Credit will be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
(i) Except as disclosed in Part I of Schedule 4.01(o) hereto, the Disclosure Documents, such Borrower operations and properties of each Loan Party and each Significant Subsidiary of such Borrower is its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with all laws (including ERISA such Environmental Laws and Environmental LawsPermits has been resolved without material ongoing obligations or costs, and no circumstances exist that would be reasonably likely to (i) rulesform the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any material restrictions on ownership, regulations and orders of occupancy, use or transferability under any governmental authority applicable to itEnvironmental Law in effect on the date hereof.
(iii) No accumulated funding deficiency (Except as defined disclosed in Section 302 Part II of ERISA and Section 412 of Schedule 4.01(o) hereto or as would not, individually or in the Internal Revenue Code) that could reasonably be expected to have aggregate, result in a Material Adverse Effect, whether none of the properties currently or not waivedformerly owned or operated by any Loan Party or any of its Subsidiaries is listed or, exists with respect to the best knowledge of any Loan Party, proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any Plan. Such Borrower such property; there are no and never have been any underground or aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed 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; 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 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.
(iii) Except as disclosed in Part III of Schedule 4.01(o) hereto, neither any Loan Party nor any of its Subsidiaries is undertaking, and has not incurredcompleted, and does not presently expect to incureither individually or together with other potentially responsible parties, any withdrawal liability under Title IV of ERISA with respect investigation or assessment or remedial or response action relating to any Multiemployer Plan that could reasonably be expected actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to have a Material Adverse Effect. Such Borrower the order of any governmental or regulatory authority or the requirements of any Environmental Law; and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower and each 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 complied been disposed of in all a manner not reasonably expected to result in material respects with foreign law applicable liability to its Foreign Plans, if any. As used herein, the term “Plan” shall mean 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 any Borrower Loan Party or any of its ERISA AffiliatesSubsidiaries.
(o) Neither any Loan Party nor any of its Subsidiaries is an "investment company," or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended. The term “Multiemployer Plan” shall mean Neither the making of any Plan which Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated hereby, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(p) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(q) Set forth on Schedule 4.01(t) hereto is a “multiemployer plan” complete and accurate list of all Existing Debt (other than Surviving Debt), showing as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclethe Existing Credit Agreement Effective Date the principal amount outstanding thereunder.
Appears in 2 contracts
Samples: Credit Agreement (Crompton & Knowles Corp), Credit Agreement (Uniroyal Chemical Co Inc)
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers represents and warrants as follows:
(a) Such Borrower No Default or Event of Default has occurred and is a corporation duly organizedcontinuing other than the Specified Default, 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 in date of this Amendment (except any such representation which it is incorporated or otherwise organizedas of a specified date, which is accurate and each Significant Subsidiary complete as of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizeddate).
(b) The execution, delivery and performance by such Borrower of this Agreement, Amendment and the consummation of the transactions contemplated herebyagreements, instruments and other documents executed in connection herewith (i) are within such Borrower’s limited liability company or corporate powerspower, (ii) have been duly authorized by all necessary actionor proper actions of or pertaining to such Borrower (including the consent of managers, and do members, directors, officers, or shareholders, as applicable), (iii) are not contravene in contravention of (iA) any agreement or indenture to which such Borrower is a party or by which such Borrower is bound, (B) such Borrower’s certificate of incorporation or by-lawsCharter Documents, (iiC) law any provision of law, or (D) any order, writ, judgment, injunction, or decree of any court of competent jurisdiction binding or affecting on such Borrower or its property and (iiiiv) do not require the consent or approval of any contractual restriction binding on or affecting such Borrower Governmental Unit or any of its propertiesother Person that has not been obtained and furnished to the Lender.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legalNo authorization, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party Person is required for the due execution, delivery and performance by such Borrower of this AgreementAmendment or any of the agreements, except for instruments and other documents executed in connection herewith.
(d) This Amendment and the Loan Agreement as amended hereby constitute the legal, valid and binding obligations of such Governmental Approvals that may be required to be obtained by Borrower enforceable against such Borrower in connection accordance with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, their respective terms except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied enforceability may be limited by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (as defined in Section 302 ii) general principles of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleequity.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hooper Holmes Inc), Loan and Security Agreement (Hooper Holmes Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower Each Loan Party and each of its Subsidiaries (i) is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedof its organization, and each Significant Subsidiary of such Borrower (ii) is duly organized, validly existing qualified and in good standing under the laws of the as a foreign corporation or limited liability company in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. Each of the Loan Parties has all of the requisite power and authority, and the legal right, to execute and deliver each of the Loan Documents and the Related Documents to which it is incorporated or otherwise organizedis to be a party, to perform all of its Obligations hereunder and thereunder and to consummate the Transaction and all of the other transactions contemplated hereby and thereby.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its organization, the number and type of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries has been validly issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those created under the Collateral Documents.
(c) The execution, delivery and performance by such Borrower each Loan Party of this Agreementeach Transaction Document to which it is or is to be a party, and the consummation of the transactions contemplated herebyTransaction, are within such BorrowerLoan Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) contravene such BorrowerLoan Party’s certificate of incorporation charter or by-lawsbylaws, (ii) law binding violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or affecting such Borrower or award, (iii) conflict with or result in the breach of, or constitute a default or, except as set forth in the attached Schedule 4.01(c)(iii), require any contractual restriction payment to be made under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Borrower any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its properties.
(c) This Agreement has been duly executed and delivered by Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such Borrower. This Agreement is the legallaw, valid and binding obligation rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Borrower enforceable against such Borrower in accordance with its termscontract, except as the enforceability thereof may be limited by bankruptcyloan agreement, insolvencyindenture, fraudulent conveyance mortgage, deed of trust, lease or other similar laws affecting instrument, the enforcement violation or breach of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in which could have a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingMaterial Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by such Borrower any Loan Party of this Agreementany Transaction Document to which it is or is to be a party, or for the consummation of the Transaction, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (iv) the exercise by any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrowerauthorizations, each approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which Governmental Approvals will have been obtained duly obtained, taken, given or made and will be are in full force and effect on or prior to effect. Notwithstanding the foregoing, it is understood that (i) no regulatory approvals have been obtained in connection with the pledge of shares of any regulated entity and (ii) as of the date hereof no regulatory approvals have been obtained or are being sought in connection with the possible exercise of remedies under this Agreement or any Extension of Credit the Collateral Documents. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or for the account otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of such Borrowerthem.
(e) This Agreement has been, and each other Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each other Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, proceeding affecting any Environmental Action, affecting such Borrower Loan Party or any of its Significant Subsidiaries pending or, to the best knowledge of any Loan Party, threatened before any court, governmental agency or arbitrator of any kind that is (i) either individually or in the aggregate, could be reasonably likely to have a Material Adverse EffectEffect other than any such action, except as disclosed suit, investigation, litigation or proceeding affecting BCI or any of its Subsidiaries after the Part II Effective Date which does not affect BRW or any of its Subsidiaries, or (ii) in which there is a reasonable likelihood of an adverse determination and which purports to affect the Disclosure Documentslegality, validity or enforceability of any Transaction Document or the consummation of the Transaction, any of the Loan Documents or the Related Documents or any of the other transactions contemplated hereby.
(fg) The consolidated Consolidated balance sheet sheets of each Borrower BRW and its Consolidated Subsidiaries (including BCI and its Subsidiaries) as at December 31, 20072001, and the related consolidated Consolidated and consolidating, if any, statements of income and Consolidated statement of cash flows of such Borrower BRW and its Consolidated Subsidiaries (including BCI and its Subsidiaries) for the fiscal year then ended, accompanied by an unqualified opinion of Deloitte & Touche LLPPWC independent public accountants, an independent registered public accounting firmand the Consolidated and consolidating, if any, balance sheets of BRW and its Subsidiaries (including BCI and its Subsidiaries) as at September 30, 2002, and the related Consolidated and consolidating statements of income and Consolidated statement of cash flows of BRW and its Subsidiaries (including BCI and its Subsidiaries) for the nine months then ended, duly certified by the Chief Financial Officer of BRW, copies of each of which have been furnished to each LenderLender Party, fairly present the consolidated Consolidated and consolidating financial condition of such Borrower BRW and its Consolidated Subsidiaries (including BCI and its Subsidiaries) as at such date dates and the consolidated Consolidated and consolidating results of the operations of such Borrower BRW and its Consolidated Subsidiaries (including BCI and its Subsidiaries) for the period periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. Since applied on a consistent basis, and since December 31, 20072001, there has been no Material Adverse Change with respect Change;
(h) [Intentionally Omitted.]
(i) The Consolidated and consolidating forecasted balance sheets, statements of income and statements of cash flows of BRW and its Subsidiaries included in the Information Materials (as applicable) or delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such Borrowerforecasts, and represented, at the time of delivery, BRW’s best estimate of its future financial performance.
(gj) No written statement, Neither the Information Materials nor any other information, report, financial statement, exhibit or schedule report furnished by or on behalf of such Borrower any Loan Party to the Administrative Agent, any Agent or any Lender or any LC Issuing Bank Party in connection with the syndication Loan Documents or negotiation pursuant to the terms of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain the Loan Documents contained any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit omitted to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, made therein not misleading.
(hk) Except as disclosed No Borrower is engaged in the Disclosure business of extending credit for the purpose of purchasing or carrying Margin Stock, and following the application of the proceeds of each Advance or drawing under each Letter of Credit, not more than 25% of the value of the assets (of BRW and its Subsidiaries (including BCI and its Subsidiaries) on a Consolidated basis) subject to the provisions of Section 5.02(a) or 5.02(e) or subject to any restriction contained in any agreement or instrument between BRW and any Lender Party or any Affiliate of any Lender Party relating to Debt within the scope of 7.01(e) will be Margin Stock. For purposes of this Section 4.01(k), “assets” of BRW or any of its Subsidiaries includes, without limitation, treasury stock of BRW that has not been retired.
(l) Neither any Loan Party nor any of its Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Neither 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 issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by such Borrower, nor the consummation of the other transactions contemplated by the Transaction Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders will violate any provision of any governmental authority applicable to itsuch Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(m) Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could have a Material Adverse Effect.
(n) All filings and other actions necessary or desirable to perfect and protect the security interest in the Collateral created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Administrative Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents.
(o) BRW and its Subsidiaries, on a consolidated basis, is Solvent (it being understood and agreed that a going concern qualification for Fiscal Year 2002 shall not in and of itself be deemed to evidence that BRW is not Solvent).
(p) (i) No accumulated funding deficiency (as defined ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has resulted in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could or is reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to Effect on any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower Loan Party or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleAffiliate.
Appears in 2 contracts
Samples: Credit Agreement (Broadwing Communications Inc), Credit Agreement (Broadwing Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of its obligations in connection with this Agreement, and the consummation of the transactions contemplated hereby, Amendment are within such Borrower’s its corporate (or other organizational) powers, have been duly authorized by all necessary action, corporate (or other organizational) action and do not contravene and will not (i) such Borrower’s violate any provision of its articles or certificate of incorporation or by-lawsbylaws or similar organizing or governing documents of such Borrower, (ii) law binding or affecting contravene any Applicable Law which is applicable to such Borrower or Borrower, (iii) conflict with, result in a breach of or constitute (with notice, lapse of time or both) a default under any contractual restriction binding on material indenture or affecting instrument or other material agreement to which such Borrower is a party, by which it or any of its propertiesproperties is bound or to which it is subject, or (iv) except for the Liens granted in favor of the Administrative Agent pursuant to the Security Documents, result in or require the creation or imposition of any Lien upon any of its properties or assets, except, in the case of clauses (ii) and (iii) above, to the extent such contraventions, conflicts, breaches or defaults could not reasonably be expected to have a Material Adverse Effect.
(cb) This Agreement Such Borrower has been duly taken all necessary corporate (or other organizational) action to execute, deliver and perform this Amendment and has validly executed and delivered by such Borrowereach of this Amendment. This Agreement is Amendment constitutes the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as to the extent that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in generalgenerally, and except as the availability of the remedy of specific performance is subject to by general equitable principles or by principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(dc) No material consent, approval, authorization or approval or other action by, and no notice to to, or registration or filing with, any governmental authority Governmental Authority or regulatory body other Person is or any other third party is will be required for as a condition to or otherwise in connection with the due execution, delivery and performance by such Borrower of this Agreement, Amendment except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will as have been obtained or made and will be are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents.
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Loan Documents are true and correct in all material respects on or prior to and as of the date of any Extension of Credit to or for the account hereof as though made on and as of such Borrowerdate (other than any such representations or warranties that, by their terms, refer to a specific date, in which case as of such specific date).
(e) There is no pending No Default or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any Event of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely Default shall exist immediately prior to have a Material Adverse Effect, except as disclosed in the Disclosure Documentsand after giving effect to this Amendment.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 2 contracts
Samples: Credit Agreement (DXP Enterprises Inc), Credit Agreement (DXP Enterprises Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Each Borrower is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and is duly qualified to do business as a foreign corporation in which it is incorporated all jurisdictions where the nature of its properties or otherwise organizedbusiness so requires, and each Significant Subsidiary of except for jurisdictions where the failure in the aggregate to so qualify would not have a material adverse effect on such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits business.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and the Notes of such Borrower, and the consummation by Xerox and XCC of the transactions contemplated herebyOperating Agreement and the Support Agreement, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such any Borrower’s certificate of incorporation 's charter or by-laws, laws or (ii) any law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such any Borrower or any of its propertiesassets.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for Agreement and the account Notes of such Borrower, each or by Xerox and XCC of the Operating Agreement and the Support Agreement, other than those which Governmental Approvals will have been duly obtained or made and will be are in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowereffect.
(ed) There is no pending or threatened actionThis Agreement is, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting and the Notes of such Borrower or any when delivered hereunder will be, legal, valid and binding obligations of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed such Borrower enforceable against such Borrower in the Disclosure Documentsaccordance with their respective terms.
(fi) The consolidated balance sheet of each U.S. Borrower and its Consolidated Subsidiaries as at December 31, 20071996, and the related consolidated statements of income and cash flows of each U.S. Borrower and its Subsidiaries for the fiscal year then ended, copies of which have been furnished by each U.S. Borrower to the Funding Agent for each Lender, fairly present the consolidated financial condition of such U.S. Borrower and its Subsidiaries as at such date and the consolidated results of operations and cash flows of such U.S. Borrower and its Subsidiaries for the year ended on such date, all in accordance with generally accepted accounting principles consistently applied. The consolidated balance sheet of such U.S. Borrower and its Subsidiaries as at June 30, 1997, and the related consolidated statements of income and cash flows of such U.S. Borrower and its Consolidated Subsidiaries for the fiscal year six months then ended as contained in the quarterly report of such U.S. Borrower on Form 10-Q for the period then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished by such U.S. Borrower to the Funding Agent for each Lender, fairly present the consolidated financial condition of such U.S. Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations and cash flows of such U.S. Borrower and its Consolidated Subsidiaries for the six-month period ended on such date, all in accordance with generally accepted accounting principles consistently applied. .
(ii) Since December 31June 30, 2007, 1997 there has been no Material Adverse Change with respect material adverse change in the condition or operations of either of the U.S. Borrowers.
(f) There is no pending or threatened action or proceeding affecting either U.S. Borrower or any of their respective Subsidiaries before any court, governmental agency or arbitrator, which (i) would be likely to such have a material adverse effect on any U.S. Borrower's ability to perform its obligations under this Agreement or its Notes or (ii) is likely to affect the legality, validity or enforceability against any U.S. Borrower of this Agreement or any of its Notes.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, is engaged in the light 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 circumstances under which they wereFederal Reserve System), are, or and no proceeds of any Advance made to any Borrower will be madeused to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock, not misleadingexcept in compliance with all Regulations issued by the Board of Governors of the Federal Reserve System including, without limitation, Regulations G, T, U and X thereof.
(h) Except as disclosed The Operating Agreement and the Support Agreement, complete copies of each of which have been furnished to each Lender prior to the date of this Agreement, are in full force and effect, and the Disclosure Documents, such Borrower and each Significant Subsidiary Lenders hereunder are third party beneficiaries of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itthe Support Agreement.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 As of the Internal Revenue CodeEffective Date, there are no United Kingdom Taxes which are imposed on any payment to be made by Xerox Capital (Europe) or Xerox Overseas pursuant to this Agreement or its Notes, or are imposed by virtue of the execution, delivery or enforcement of this Agreement or its Notes; provided that could reasonably withholding taxes will be expected imposed on payments of interest to have a Material Adverse EffectLender in respect of an Advance unless (i) such Lender is a bank within the meaning of that expression in s.840A of the Income and Corporation Taxes Xxx 0000 of the United Kingdom and such Advance is made through, whether or not waivedand effectively connected with, exists such Lender's Applicable Lending Office in the United Kingdom such that the Lender is within the charge to United Kingdom Corporation Tax with respect to such interest and its Note of the relevant Overseas Borrower evidencing such Advance is not assigned, negotiated or otherwise transferred to a Person outside the United Kingdom or to any Plan. Such Borrower has other Person who is not incurred, and does not presently expect within the charge to incur, any withdrawal liability under Title IV of ERISA United Kingdom Corporation Tax with respect to any Multiemployer Plan that could reasonably be expected to have such interest, (ii) the term of such Advance is for an Interest Period (which term shall include all extensions and successive renewals of such Advance upon expiry of an Interest Period for such Advance) of 364 days or less or (iii) such Lender is resident in a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects country with ERISA which the United Kingdom has a double tax treaty and the Internal United Kingdom Inland Revenue Code. Such has issued a direction in writing to the relevant Overseas Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plans, if anypay interest on such Advance gross to such Lender pursuant to an exemption from United Kingdom Tax on such interest to which such Lender is entitled under such treaty. As used hereinin the foregoing clause (iii), the term “Plan” shall mean 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 "Lender" refers to the terms beneficial owner of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined interest on the Advance in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclequestion.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Xerox Credit Corp), Revolving Credit Agreement (Xerox Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated State of New York or otherwise organizedDelaware, as the case may be, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing qualified to do business under the laws of the jurisdiction such other jurisdictions in which it is incorporated or otherwise organizedits failure to so qualify could have a Material Adverse Effect.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, Amendment (i) are within such Borrower’s 's corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (iA) such Borrower’s certificate 's Governing Documents, (B) any Requirement of incorporation Law or by-laws, (C) any Material Contract and (ii) law binding will not result in or affecting require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legalNo authorization, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 Governmental Authority or regulatory body or any other third party Person is required for the due execution, delivery and performance by such Borrower of this AgreementAmendment.
(d) This Amendment and the Loan Agreement as amended hereby constitute the legal, except for valid and binding obligations of such Governmental Approvals that may be required to be obtained by Borrower enforceable against such Borrower in connection accordance with any Extension their respective terms except as enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There Except as specified in Schedule 6.1(r) to the Loan Agreement, there is no pending or or, to the best of such Borrower's knowledge after due inquiry, threatened actionlitigation, suitcontested claim, investigation, litigation arbitration or proceeding, including, without limitation, any Environmental Action, affecting governmental proceeding by or against such Borrower or any of its Significant Subsidiaries before any court, governmental agency Governmental Authority or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed which individually or in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that aggregate could reasonably be expected to have a Material Adverse EffectEffect or which purports to affect the legality, whether validity or not waived, exists with respect to any Plan. Such Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV enforceability of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and this Amendment or the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” Loan Agreement as amended hereby.
(f) Except as defined specified in Section 3 of ERISA) which 1 hereof, no Default has occurred and 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecontinuing.
Appears in 2 contracts
Samples: Loan and Security Agreement (Del Global Technologies Corp), Loan and Security Agreement (Del Global Technologies Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower It is a corporation Person duly organized, validly existing and in good standing under the laws of the jurisdiction in which it of its formation (to the extent such concept is incorporated or otherwise organized, and each Significant Subsidiary of recognized under such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedgenerally).
(b) The execution, delivery and performance by such Borrower it of this Agreementeach Loan Document to which it is a party and to be delivered by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate or other powers, have been duly authorized by all necessary corporate or other action, and do not contravene (i) such Borrower’s certificate of incorporation charter or by-laws, bylaws or comparable organizational documents or (ii) any applicable law binding or affecting such Borrower or (iii) any contractual restriction in any material contract or, to the knowledge of the chief financial officer of such Borrower, any other contract the breach of which would limit the ability of such Borrower to perform its obligations under any Loan Document, binding on or affecting such Borrower or any of Borrower. With respect to Lubrizol Europe and LECC, the entry into the Loan Documents and the transactions contemplated thereby is in its propertiescorporate interest.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required any Loan Document to which it is a party and to be obtained delivered by such Borrower in connection with any Extension of Credit to it or for the account consummation of such Borrowerthe transactions contemplated hereby, each of which Governmental Approvals will other than authorizations, approvals, actions, notices or filings (i) that have been obtained duly obtained, taken, given or made and will be are in full force and effect on or prior (ii) as to which the failure to obtain, take, give or make would not reasonably be likely to result in a Material Adverse Effect.
(d) This Agreement has been, and each of the other Loan Documents to be delivered by it when delivered hereunder will have been, duly executed and delivered by it. This Agreement is, and the other Loan Documents when delivered hereunder will be, its legal, valid and binding obligation enforceable against it in accordance with their respective terms, except to the date extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of any Extension of Credit to whether enforcement is sought in equity or for the account of such Borrowerlaw).
(e) There is no pending or or, to such Borrower’s knowledge, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) would be reasonably likely to have a Material Adverse EffectEffect (other than the Disclosed Litigation) or (ii) purports to affect the legality, except as disclosed validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the Disclosure Documentsstatus, or financial effect on such Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, Any information, report, financial statement, exhibit or schedule report that has been or will hereafter be furnished by or on behalf of such Borrower to the Administrative Agent, Agent or any Lender or any LC Issuing Bank in connection with the negotiation and syndication or negotiation of this Agreement or included herein or delivered pursuant hereto containedto the terms of this Agreement is and will be when furnished, containstaken as a whole, or complete and correct in all material respects and does not and will not, when furnished, contain any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit to state any a material fact necessary in order to make the statements therein, contained therein not misleading in the light of the circumstances under which they weresuch statements were or are made.
(g) Such 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), are, or and no proceeds of any Advance will be made, not misleadingused to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rulesnot an “investment company”, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 or a company “controlled” by an “investment company”, within the meaning of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse EffectInvestment Company Act of 1940, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleamended.
Appears in 2 contracts
Samples: Credit Agreement (Lubrizol Corp), Credit Agreement (Lubrizol Corp)
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers hereby represents and warrants to the Agent and the Lenders, which representations and warranties shall survive the execution and delivery of this Limited Waiver, that on and as followsof the date hereof and after giving effect to this Limited Waiver:
(a) Such Borrower is a corporation duly organizedAs to each Borrower, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery delivery, and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, Limited Waiver have been duly authorized by all necessary actionaction on the part of such Borrower.
(b) As to each Borrower, the execution, delivery, and do performance by such Borrower of this Limited Waiver does not contravene and will not (i) such violate any provision of federal, state, or local law or regulation applicable to any Borrower’s certificate , the Governing Documents of incorporation any Borrower, or by-lawsany order, judgment, or decree of any court or other Governmental Authority binding on any Borrower, (ii) law binding conflict with, result in a breach of, or affecting such Borrower constitute (with due notice or lapse of time or both) a default under any material contractual obligation of any Borrower, (iii) result in or require the creation or imposition of any contractual restriction binding on Lien of any nature whatsoever upon any properties or affecting such Borrower assets of Borrower, other than Permitted Liens, or (iv) require any approval of any Borrower’s interest holders or any approval or consent of its propertiesany Person under any material contractual obligation of any Borrower, other than consents or approvals that have been obtained and that are still in force and effect.
(c) This Agreement has been duly As to each Borrower, this Limited Waiver and all other documents contemplated hereby, when executed and delivered by such Borrower. This Agreement is Borrower will be the legal, legally valid and binding obligation obligations of such Borrower Borrower, enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof enforcement may be limited by equitable principles or by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium, or other similar laws affecting the enforcement of relating to or limiting creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(d) No authorization or approval or other action by, The representations 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 such Borrower warranties of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of the Borrowers set forth in the Credit Agreement and in the Loan Documents to which Governmental Approvals will have been obtained it is a party are true, correct and will be in full force complete on and effect on or prior as of the date hereof; provided that the references to the date of any Extension of Credit Agreement therein shall be deemed to or for include the account of such BorrowerCredit Agreement as modified by this Limited Waiver.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results Each of the operations of Borrowers acknowledges that the Agent and each Lender is specifically relying upon the representations, warranties and agreements contained in this Limited Waiver and that such Borrower representations, warranties and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower agreements constitute a material inducement to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Agent and each Significant Subsidiary of such Borrower is Lender in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itentering into this Limited Waiver.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 2 contracts
Samples: Limited Waiver to Credit Agreement (SoftBrands, Inc.), Limited Waiver to Credit Agreement (SoftBrands, Inc.)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, State of Delaware. Each Principal Subsidiary and each Significant Subsidiary of such Borrower Restricted Affiliate is duly organizedincorporated, validly existing and in good standing under the laws of in the jurisdiction of its incorporation. The Company, each Principal Subsidiary and 48 44 each Restricted Affiliate possess all corporate powers and all other authorizations and licenses necessary to engage in its business and operations as now conducted, the failure to obtain or maintain which it is incorporated or otherwise organizedwould have a Material Adverse Effect.
(b) The execution, delivery and performance by such (i) each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and the consummation its Notes (as applicable) and (ii) each Restricted Affiliate of the transactions contemplated hereby, its Restricted Affiliate Guaranty are within such Borrower’s 's or Restricted Affiliate's, as the case may be, corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (iA) such Borrower’s certificate of incorporation 's or Restricted Affiliate's, as the case may be, charter or by-laws, (ii) law binding or affecting such Borrower laws or (iiiB) any law or any material contractual restriction binding on or affecting such Borrower or any of its propertiesRestricted Affiliate, as the case may be.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by (i) such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable) or (ii) any Restricted Affiliate of its Restricted Affiliate Guaranty, except for filings necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Governmental Approvals that Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to which it is a party (as applicable) when delivered hereunder shall constitute and its Restricted Affiliate Guaranty when delivered hereunder shall constitute, the legal, valid and binding obligations of each Borrower or Restricted Affiliate, as the case may be, enforceable against such Borrower or Restricted Affiliate, as the case may be, in accordance with their respective terms, except as may be required to be obtained limited by such Borrower in connection with any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower EPNGC and its Consolidated consolidated Subsidiaries as at December 31, 20071995, and the related consolidated statements of income and cash flows of such Borrower EPNGC and its Consolidated consolidated Subsidiaries for the fiscal year then ended, accompanied reported on by an opinion of Deloitte Coopers & Touche LLPLybrxxx XXX, an independent registered public accounting firmaccountants, copies of each of which have been furnished to each Lenderthe Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of such Borrower EPNGC and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of 49 45 the operations of such Borrower EPNGC and its Consolidated consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since , and since December 31, 20071995, there has been no Material Adverse Change material adverse change in such condition or operations. The unaudited consolidated balance sheet of EPNGC and its consolidated Subsidiaries as of June 30, 1996, and the related consolidated statements of income and cash flows of EPNGC and its consolidated Subsidiaries for the six months then ended, certified by the chief financial officer of EPNGC, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of EPNGC and its consolidated Subsidiaries for the three months then ended, all in accordance with respect generally accepted accounting principles consistently applied (except as approved by the chief financial officer of EPNGC and as disclosed therein) and subject to such Borrowernormal year-end audit adjustments.
(f) The unaudited pro forma combined balance sheet of EPNGC and Tenneco Energy as at June 30, 1996 and the related unaudited pro forma combined statements of income of EPNGC and Tenneco Energy for the six-month period ended June 30, 1996 set forth in the Joint Proxy Statement, copies of which have been delivered to the Lenders, were prepared from financial statements referred to in Section 4.1(e), which were prepared in accordance with generally accepted accounting principles, are complete and correct in all material respects and have been prepared on the basis described therein and show the combined financial position and results of operations of EPNGC and Tennessee as if the Transaction had occurred, in the case of the combined balance sheet, on June 30, 1996, and in the case of combined statements of income, as of January 1, 1995.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Company and each Significant Subsidiary of such Borrower its Subsidiaries is in material compliance with all laws (including ERISA and Environmental Laws) laws, rules, regulations and orders of any governmental authority applicable to itit or its property except where the failure to comply, individually or in the aggregate, would not in the reasonable judgment of the Company be expected to result in a Material Adverse Effect.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA The Company, each Principal Subsidiary and Section 412 of each Restricted Affiliate have duly filed all tax returns required to be filed, and have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the Internal Revenue Code) that could reasonably be expected failure to pay which would have a Material Adverse Effect, whether unless and to the extent only that the same are being contested in good faith and by appropriate proceedings by the Company, the appropriate Subsidiary or the appropriate Restricted Affiliate.
(j) The Company, each Principal Subsidiary and each Restricted Affiliate have good title to their respective properties and assets, free and clear of all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not waivedmaterially interfere with the business or operations of the Company, exists such Subsidiary or such Restricted Affiliate as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(k) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan. Such Borrower Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g).
(l) Each Plan has not complied with the applicable provisions of ERISA and the Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(m) The statement of assets and liabilities of each Plan other than, prior to the Merger, any Plan of Tennessee or any of its Subsidiaries and the statements of changes in fund balance and in financial position, or the statement of changes in net assets available for plan benefits, for the most recent plan year for which an accountant's report with respect to such Plan has been prepared, copies of which report have been furnished to the Administrative Agent, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(n) Neither the Company nor any ERISA Affiliate has incurred, and does not presently expect or is reasonably expected to incur, any withdrawal liability under Withdrawal Liability to any Multiemployer Plan which, when aggregated with all other amounts required to be paid to Multiemployer Plans in connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company. 51 47
(o) Neither the Company nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA with respect the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i).
(p) The Borrowers are not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance will be used to extend credit to others (other than to any Multiemployer Plan that could reasonably be expected to have Subsidiary of the Company) for the purpose of purchasing or carrying Margin Stock.
(q) No Borrower is an "investment company" or a Material Adverse Effect. Such "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(r) No Borrower and each is a "holding company" or a "subsidiary company" of its ERISA Affiliates have complied in all material respects with ERISA a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) The borrowings by the Borrowers under this Agreement and the Internal Revenue CodeNotes and the applications of the proceeds thereof as provided herein will not violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. Such Borrower All representations and each warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making 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” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is Advances and has been established or maintained, or to which contributions are or have been made or should be made according the execution and delivery to the terms Lenders of this Agreement and the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleNotes.
Appears in 1 contract
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso Natural Gas Co)
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant jointly and severally to the Lender as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing the Borrowers each exist under the laws of the jurisdiction in which it is incorporated or otherwise organizedthey are created, and each Significant Subsidiary of such Borrower has not discontinued or been dissolved under any applicable laws and is duly organized, validly existing and in good standing under with respect to the filing of annual reports and all other such requirements pursuant to the laws of the jurisdiction in which it is incorporated or otherwise organized.thereof;
(b) The executionthe Borrowers each have the power and authority to (i) carry on their businesses as now being conducted and are each licensed or registered or otherwise qualified in all jurisdictions wherein the nature of each of their assets or the business transacted by them makes such licensing, delivery registration or qualification necessary, (ii) acquire, own, hold, lease and performance mortgage or grant security in their assets including real property and personal property and (iii) enter into and perform their obligations under this Agreement and all other documents or instruments delivered hereunder;
(c) this Agreement and all ancillary instruments or documents issued, executed and delivered hereunder by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, Borrowers have been duly authorized by all necessary action, action of the Borrowers and do not contravene (i) such Borrower’s certificate of incorporation each constitutes or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the will constitute a legal, valid and binding obligation of such Borrower the Borrowers, enforceable against such Borrower the Borrowers, in accordance with its their terms, except as the enforceability thereof may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance or reorganization, moratorium and other similar laws affecting the enforcement rights and remedies of creditors’ rights in general, creditors and except as to the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.equity;
(d) No authorization neither the Borrowers nor any Subsidiary is in breach of or approval or other action byin default under any obligation in respect of borrowed money, and no notice to the execution and delivery of this Agreement and all ancillary instruments or filing withdocuments issued and delivered hereunder or thereunder, and the performance of the terms hereof and thereof will not be, or result in, a violation or breach of, or default under, the Borrowers’ or any Subsidiary’s charter documents, any governmental authority law, judgment, agreement or regulatory body instrument to which they are a party or any other third party is required for the due may be bound;
(e) execution, delivery and performance by such Borrower of this AgreementAgreement and all other documents and instruments contemplated hereby will not constitute a breach or default under or in respect of any agreement to which the any of the Borrowers is bound, except for and no consent, filing, authorization, approval or other action is prudent or necessary under the terms of any such Governmental Approvals that may be required agreement to be obtained by such Borrower proceed with the transactions contemplated herein;
(f) no litigation or administrative proceedings before any court or governmental authority are presently ongoing, or have been threatened in connection with any Extension writing, or to the best of Credit to or for the account of such Borrower, each of the Borrowers” knowledge are pending, against the any of the Borrowers, any Subsidiary or any of their respective properties or assets or affecting any of their respective properties or assets which Governmental Approvals will could have been obtained and will be in full force and a material adverse effect on their respective business, properties or assets;
(g) the Borrowers or each Subsidiary, as the case may be, are the legal and beneficial owner of the interests in the properties, business and assets referred to in the information circulars, prospectuses, annual information forms, offering memoranda, financial statements, material change reports and news releases filed with the Exchanges and the securities regulatory authority or commission in each of the jurisdictions in which TransAtlantic Petroleum Ltd. is a reporting issuer on or during the twelve (12) months preceding the date hereof, and any other disclosure materials provided to the Lender and their advisers in conjunction with this transaction (collectively, the “Disclosure Record”), as being owned by any of the Borrowers or such Subsidiary and has a valid right to acquire all interests in properties, business and assets referred to in the Disclosure Record as being subject to options or other rights to acquire the same, and any and all agreements pursuant to which the Borrowers and each Subsidiary, as the case may be, holds or will hold any such interests, options or rights in property, business or assets are in good standing in all material respects under the applicable statutes and regulations of the jurisdictions in which they are situated;
(h) except as disclosed to the Lender in writing prior to the date Effective Date, there has been no material adverse change (actual, contemplated or threatened) in the property, assets, business or operations of the any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower Borrowers or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse EffectSubsidiary within the past twelve (12) months, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower Record and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.material adverse change since December 31, 2011;
(gi) No written statementthe Disclosure Record is complete and accurate in all material respects and omits no facts, informationthe omission of which makes the Disclosure Record, reportor any particulars therein, misleading, misrepresentative or incorrect in any material respect;
(j) the Borrowers and to the best of each of the Borrowers’ knowledge each Subsidiary, has conducted and is conducting each of their businesses in material compliance with all applicable laws, bylaws, rules and regulations of each jurisdiction in which each of their businesses are now carried on and hold all licenses, registrations, permits, consents or qualifications (whether governmental, regulatory or otherwise) required in order to enable each of their businesses to be carried on as now conducted or as proposed to be conducted, and all such licenses, registrations, permits, consents and CREDIT AGREEMENT- PAGE | 7 qualifications are valid and subsisting and in good standing and neither the Borrowers nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such licenses, registrations, permits, consents or qualifications which, if the subject of an unfavourable decision, ruling or finding, would materially adversely affect the condition of such businesses, operations, condition (financial statementor otherwise) or income of the Borrowers or any such Subsidiary, exhibit as the case may be;
(k) no order ceasing or schedule suspending trading in securities of the Borrowers or prohibiting the sale or trading of securities by the Borrowers has been issued and no proceedings for this purpose have been instituted, are pending, contemplated or threatened;
(l) no taxation authority has asserted or, to the best of the Borrowers’ knowledge, has threatened to assert any assessment, claim or liability for taxes due or to become due in connection with any review or examination of the tax returns of the Borrower or any Subsidiary filed for any year which would have material adverse effect on the assets, properties, business, results of operations, prospects or condition (financial or otherwise) of the Borrowers or any Subsidiary;
(m) neither the Borrowers nor any Subsidiary is a party to any material contract other than as disclosed in the Disclosure Record;
(n) except as disclosed to the Lender in writing prior to the Effective Date of this Agreement, the Borrowers and each Subsidiary owns each of their business, operations and assets, as more particularly described in the Disclosure Record;
(o) all factual information previously or contemporaneously furnished to the Lender by or on behalf of such Borrower to the Administrative Agent, any Lender Borrowers for purposes of or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto containedany transaction contemplated hereby, contains, or will contain any is true and accurate in every material misstatement respect and such information is not incomplete by the omission of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make such information not misleading; and
(p) after giving effect to the statements therein, in the light consummation of the circumstances under which they wereViking Sale and the Loan contemplated in this Agreement, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Borrowers and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable are generally able to itpay their debts as they come due.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers represents and warrants to each Lender, each Managing Agent and the Administrative Agent, on and as of the Closing Date and the date of each subsequent Advance, as follows:
(a) Such Each Borrower is a corporation duly organizedformed, validly existing and in good standing under the laws of the its jurisdiction in which of organization, and it is incorporated or otherwise organizedduly qualified to do business in each jurisdiction where the conduct of its business requires it to be so qualified, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under except where the laws of the jurisdiction in which it is incorporated or otherwise organizedfailure to be so qualified would not have a Material Adverse Effect.
(b) The execution, delivery and performance by such each Borrower of this Agreement, Agreement and the consummation other Transaction Documents to which it is a party, including its use of the transactions contemplated herebyproceeds of Advances, (i) are within such Borrower’s corporate its powers, ; (ii) have been duly authorized by all necessary organizational action, and ; (iii) do not contravene or result in a default under or conflict with (iA) its constitutional documents; (B) any law, rule or regulation applicable to it except where such Borrower’s certificate contravention, default or conflict would not have a Material Adverse Effect; (C) any indenture, loan agreement, mortgage, deed of incorporation trust or by-laws, (ii) law binding other material agreement or affecting such Borrower instrument to which it is a party or by which it is bound; or (iiiD) any contractual restriction order, writ, judgment, award, injunction or decree binding on or affecting such Borrower it or any of its properties.
property; and (civ) do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties except under the Transaction Documents. This Agreement has and the other Transaction Documents to which it is a party have been duly executed and delivered by such Borrower. This Agreement is it.
(c) Except as permitted by this Agreement, the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in generalBorrowers have not engaged, and except do not presently engage, in any activity other than the activities undertaken pursuant to or as contemplated by the availability of Transaction Documents, nor has either Borrower entered into any agreement other than the remedy of specific performance is subject Transaction Documents and any agreement necessary to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject undertake any activity pursuant to requirements of reasonableness, good faith and fair dealingthe Transaction Documents.
(d) No authorization or approval authorization, approval, consent, order or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person that has not been made or any other third party obtained is required for the due execution, delivery and performance by such Borrower the Borrowers of this AgreementAgreement or any other Transaction Document to which it is a party, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension other than the filing of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained UCC financing statements and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowercontinuation statements.
(e) Each of this Agreement and the other Transaction Documents to which either Borrower is a party constitutes its legal, valid and binding obligation enforceable against such Borrower in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(f) There is no pending or, to the Borrowers’ knowledge, threatened action or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, proceeding affecting such either Borrower or any of its Significant Subsidiaries properties before any court, governmental agency Governmental Authority or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowerarbitrator.
(g) The applicable Borrower owns all right, title and interest in, to and under the Pool Receivables, Related Security and Collections, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as a result of any action taken by any Lender, any Managing Agent or the Administrative Agent and other than with respect to the Receivables set forth on Schedule VI). This Agreement creates a security interest in favor of the Administrative Agent, for the benefit of each Lender Group, in the Pool Receivables, Related Security, Collections and other Collateral and the Administrative Agent, for the benefit of each Lender Group, has a First Priority Interest in the Pool Receivables, Related Security, Collections and other Collateral (other than the Receivables set forth on Schedule VI). No effective financing statement covering any Pool Receivable is on file in any recording office, except those (i) filed in favor of a Borrower pursuant to a Purchase and Contribution Agreement and the Administrative Agent pursuant to this Agreement or (ii) listed on Schedule VI.
(h) No Information Package (if prepared by the Borrowers or one of its Affiliates acting as Servicer) or other written statement, information, reportexhibit, financial statement, exhibit document, book, record or schedule report furnished by or on behalf of such Borrower the Borrowers to the Administrative Agent, any Lender Managing Agent or any LC Issuing Bank Lender in connection with the syndication or negotiation of this Agreement or included herein any other Transaction Document to which it is a party and in each case as modified or delivered pursuant hereto contained, contains, or will contain supplemented by other information so furnished when taken as a whole contains any material misstatement of fact or intentionally omitted, omits, or will omit omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be were made, not misleading; provided that, with respect to projected financial information, the Borrowers represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation (it being understood that such projections may vary from the actual results and that such variances may be material); provided, further, that, with respect to pro forma financial information, the Borrowers represent only that such information was prepared in good faith in accordance with assumptions and requirements of GAAP for pro forma presentation and based upon such other assumptions that are believed to be reasonable at the time of preparation and, to the extent material, are disclosed as part of such pro forma financial xxxxxxxxxxx.
Xx is understood that (hi) Except no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections and statements as disclosed to anticipated future performance or conditions, and the assumptions on which they were based or concerning any information of a general economic nature or general information about the Borrowers and their Subsidiaries’ industry, contained in any such information, reports, financial statements, exhibits or schedules, except that, in the Disclosure Documents, such Borrower and each Significant Subsidiary case of such Borrower is in material compliance with all laws forecasts, estimates, pro forma information, projections and statements, as of the date such forecasts, estimates, pro forma information, projections and statements were generated, (including ERISA 1) such forecasts, estimates, pro forma information, projections and Environmental Lawsstatements were based on the good faith assumptions of the management of the Borrowers and (2) rulessuch assumptions were believed by such management to be reasonable and (ii) such forecasts, regulations estimates, pro forma information and orders of any governmental authority applicable statements, and the assumptions on which they were based, may or may not prove to itbe correct.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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 The “Plan” shall mean an “employee pension benefit planlocation” (as defined in Section 3 the UCC) of ERISA) which the US Borrower is and has been established Delaware or maintained, or to which contributions are or have been made or should be made according such other jurisdiction as notified to the terms Administrative Agent in accordance with this Agreement.The principal place of business, chief executive office and registered office of each Borrower is at the address(es) referred to in Section 1(b) of Exhibit IV or such other location as such Borrower or the Servicer may notify the Administrative Agent. The office where each Borrower keeps its records concerning the Pool Receivables is at the address(es) referred to in Section 1(b) of Exhibit IV or such other location as such Borrower or the Servicer may notify the Administrative Agent.
(j) None of the plan Originators or the Borrowers have granted to any Person, other than the Administrative Agent, for the benefit of each Lender Group, as contemplated by this Agreement, dominion and control of any Borrower Concentration Account or any Collection Account, or, in each case, the right to take control of any such account at a future time or upon the occurrence of a future event.
(k) Neither Borrower is in violation of any order of any court, arbitrator or Governmental Authority binding on such Borrower.
(l) No proceeds of any Advance will be used for any purpose that violates Regulations T, U or X of the Federal Reserve Board.
(m) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(n) No event has occurred and is continuing that constitutes Event of Default or an Unmatured Event of Default, and no event would result from an Advance in respect of the Pool Receivables or from the application of the proceeds therefrom that constitutes Event of Default or an Unmatured Event of Default.
(o) Each Borrower will account for each Advance secured by the Pool Receivables hereunder in its ERISA Affiliates. The term “Multiemployer Plan” books and financial statements a debt of the Borrowers, allocated between the Borrowers as the Borrowers shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicledetermine.
Appears in 1 contract
Samples: Receivables Financing Agreement (Herc Holdings Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower Each of the Company and its Material Subsidiaries (i) is a corporation duly organized, validly existing and and, if applicable, in good standing standing, under the laws of the jurisdiction of its incorporation or organization, (ii) has the corporate or comparable power and authority to own its property and assets and to transact the business in which it is incorporated or otherwise organized, engaged and each Significant Subsidiary of such Borrower presently proposes to engage and (iii) is duly organizedqualified as a foreign corporation and, validly existing and if applicable, in good standing under in each jurisdiction where the laws ownership, leasing or operation of property or the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any conduct of its properties.
(c) This Agreement has been duly executed and delivered by business requires such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its termsqualification, except as where the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required failure to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, so qualified would not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such .
(b) Each Borrower has not incurredthe corporate or comparable power and authority to execute, deliver and does not presently expect perform the terms and provisions of this Amendment and each of the Loan Documents to incurwhich it is a party and has taken all necessary corporate or comparable action to authorize the execution, any withdrawal liability under Title IV delivery and performance by it of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effectthis Amendment and each of such Loan Documents, as amended hereby. Such Each Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA Subsidiary Guarantor has duly executed and the Internal Revenue Code. Such Borrower delivered this Amendment and each of the Loan Documents to which it is a party, and this Amendment and each of such Loan Documents, as amended hereby, constitutes its Subsidiaries have complied legal, valid and binding obligation enforceable in all accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).
(c) Neither the execution, delivery or performance by any Borrower of this Amendment or the Loan Documents, as amended hereby, to which it is a party, nor compliance by it with the terms and provisions thereof, (i) contravenes any provision of any law, statute, rule or regulation or any material respects order, writ, injunction or decree of any court or governmental instrumentality, (ii) conflicts or is inconsistent with foreign law applicable to its Foreign Plansor results in any breach of any of the terms, if any. As used hereincovenants, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established conditions or maintainedprovisions of, or constitutes a default under, or results in the creation or imposition of (or the obligation to which contributions are create or have been made impose) any Lien upon any of the property or should be made according assets of the Company or any of its Material Subsidiaries pursuant to the terms of any material indenture, mortgage, deed of trust, credit agreement, loan agreement or any other material agreement, contract or instrument to which the plan by any Borrower Company or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which Material Subsidiaries is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) party or by which it or any of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, its property or other employee benefit plan, program assets are bound or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to which it may be funded through a trust or other funding vehicle.subject or
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as to itself and its Subsidiaries as follows:
(a) Such Each Borrower is a corporation duly organizedorganized or validly formed, validly existing and (if applicable) in good standing under the laws of the jurisdiction State of Delaware and has all corporate or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals the failure to have which it is incorporated could not reasonably be expected to have a material adverse effect on the business, assets, condition or otherwise organized, and each Significant Subsidiary operation of such Borrower and its Material Subsidiaries taken as a whole. Each Material Subsidiary (other than NewGP, if applicable) of each Borrower is duly organizedorganized or validly formed, validly existing and (if applicable) in good standing under the laws of its jurisdiction of incorporation or formation, except where the jurisdiction failure to be so organized, existing and in good standing could not reasonably be expected to have a material adverse effect on the business, assets, condition or operations of such Borrower and its Material Subsidiaries (other than NewGP, if applicable) taken as a whole. Each Material Subsidiary of a Borrower (other than NewGP, if applicable) has all corporate or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals the failure to have which it is incorporated could not reasonably be expected to have a material adverse effect on the business, assets, condition or otherwise organizedoperation of such Borrower and its Material Subsidiaries (other than NewGP, if applicable) taken as a whole.
(b) The After giving effect to this Agreement, the L/C Agreement, the Xxxxxxx Loan Agreement and the Progeny Facilities and assuming the consummation of the transactions contemplated thereby, the execution, delivery and performance by such each Borrower and the Guarantors of this Agreement, the Credit Documents to which it is shown as being a party delivered hereunder and the consummation of the transactions contemplated hereby, thereby are within such Borrower’s 's or such Guarantor's, as the case maybe, corporate or limited liability company powers, have been duly authorized by all necessary corporate or limited liability company action, and do not contravene (i) any Borrower's or such Borrower’s certificate of incorporation or Guarantor's, as the case maybe, charter, by-laws, laws or formation agreement or (ii) law binding or affecting such Borrower or (iii) any contractual restriction under any material agreement binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or Guarantor (other than any default which may arise as a result of its ERISA Affiliates. The term “Multiemployer Plan” shall mean a draw or the probability of a draw under a letter of credit) and will not result in or require the creation or imposition of any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained Lien prohibited by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclethis Agreement.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such each Borrower of this AgreementAmendment, the Credit Agreement as amended hereby and the consummation of the transactions contemplated hereby, any documents delivered in connection herewith to which such Borrower is a party (i) are within such Borrower’s 's corporate powerspowers and authority, have been duly authorized by all necessary action, corporate action and do not contravene (iA) such Borrower’s 's Governing Documents (including, without limitation, the certificate of incorporation or by-lawsdesignation for any preferred stock of a Borrower), (ii) law binding or affecting such Borrower or (iiiB) any contractual restriction binding on or affecting such Borrower Requirement of Law applicable to it or any of its propertiesproperties or (C) any franchise, license, permit, indenture, contract, lease, agreement, instrument or other commitment to which it is a party or by which it or any of its properties are bound, and (ii) will not result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by any Borrower (other than Liens permitted by the Credit Agreement).
(cb) This Amendment, the Credit Agreement has been duly executed as amended hereby and any documents delivered by in connection herewith to which such Borrower. This Agreement Borrower is a party constitute the legal, valid and binding obligation obligations of such Borrower enforceable against such Borrower in accordance with its terms, except as the such enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance insolvency or other similar laws affecting the enforcement of creditors’ creditor's rights in general, generally and except as the availability of the remedy of specific performance is subject to general principles of equity equity.
(regardless c) There is no pending or, to the best of whether such remedy is sought in a proceeding in equity its knowledge, threatened litigation, proceeding, inquiry or at law) and subject other action seeking an injunction or other restraining order with respect to requirements of reasonableness, good faith and fair dealingthe transactions contemplated by this Amendment or the Credit Agreement as amended hereby.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, 1997 there has been occurred no Material Adverse Change with respect to such Borrower.
(g) No written statementchange, informationoccurrence, report, financial statement, exhibit development or schedule furnished by event which has had or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect.
(e) After giving effect to this Amendment, whether no Default or not waived, exists with respect to any Plan. Such Borrower Event of Default has not incurred, occurred 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” is continuing.
(as defined in Section 3 of ERISAf) 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 No shares of the plan by any Borrower or any Series A Preferred Stock will be outstanding upon the Consummation of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclethe Exchange.
Appears in 1 contract
Samples: Credit Agreement (Safety 1st Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Each of the Company and each Borrower is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, of its incorporation. Each Principal Subsidiary and each Significant Subsidiary of such Borrower Restricted Affiliate is duly organizedincorporated, validly existing and in good standing under the laws of in the jurisdiction of its incorporation. The Company, each Borrower, each Principal Subsidiary and each Restricted Affiliate possess all corporate powers and all other authorizations and licenses necessary to engage in its business and operations as now conducted, the failure to obtain or maintain which it is incorporated or otherwise organized.would have a Material Adverse Effect. 49 44
(b) The execution, delivery and performance by such (i) each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and the consummation its Notes (as applicable) and (ii) each Restricted Affiliate of the transactions contemplated hereby, its Restricted Affiliate Guaranty are within such Borrower’s 's or Restricted Affiliate's, as the case may be, corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (iA) such Borrower’s certificate of incorporation 's or Restricted Affiliate's, as the case may be, charter or by-laws, (ii) law binding or affecting such Borrower laws or (iiiB) any law or any material contractual restriction binding on or affecting such Borrower or any of its propertiesRestricted Affiliate, as the case may be.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by (i) such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable) or (ii) any Restricted Affiliate of its Restricted Affiliate Guaranty, except for filings necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Governmental Approvals that Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to which it is a party (as applicable) when delivered hereunder shall constitute and its Restricted Affiliate Guaranty when delivered hereunder shall constitute, the legal, valid and binding obligations of each Borrower or Restricted Affiliate, as the case may be, enforceable against such Borrower or Restricted Affiliate, as the case may be, in accordance with their respective terms, except as may be required to be obtained limited by such Borrower in connection with any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower Tennessee and its Consolidated consolidated Subsidiaries as at December 31, 20071995, and the related consolidated statements of income and cash flows of such Borrower Tennessee and its Consolidated consolidated Subsidiaries for the fiscal year then ended, accompanied reported on by an opinion of Deloitte & Touche LLPArthxx Xxxexxxx XXX, an independent registered public accounting firmaccountants, copies of each of which have been furnished to each Lenderthe Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of such Borrower Tennessee and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower Tennessee and its Consolidated consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since , and since December 31, 20071995, there has been no Material Adverse Change material adverse change in such condition or operations. The unaudited consolidated balance sheet of Tennessee and its consolidated Subsidiaries as of June 30, 1996, and the related consolidated statements of income and cash flows of Tennessee and its consolidated Subsidiaries for the six months then ended, certified by the chief financial officer of Tennessee, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of Tennessee and its consolidated Subsidiaries for the three months then ended, all in accordance with respect generally accepted accounting principles consistently applied (except as approved by the 50 45 chief financial officer of Tennessee and as disclosed therein) and subject to normal year-end audit adjustments. As of the date hereof, none of Tennessee or its Subsidiaries has any material obligation of the nature required by generally accepted accounting principles to be reflected in financial statements, contingent or otherwise, which is not reflected in such Borrowerfinancial statements.
(f) The combined balance sheets of the business of Tenneco Energy as of December 31, 1995 and 1994, and the related combined statements of income, cash flows and changes in combined equity for each of the three years in the period ended December 31, 1995 reported on by Arthxx Xxxexxxx XXX, independent public accountants, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the combined financial position of the business of Tenneco Energy as of December 31, 1995 and 1994 and the results of its combined operations for each of the three years in the period ended December 31, 1995 in accordance with generally accepted accounting principles consistently applied, and since December 31, 1995, there has been no material adverse change in such condition or operations. As of the date hereof, none of Tennessee or its Subsidiaries has any material obligation of the nature required by generally accepted accounting principles to be reflected in financial statements, contingent or otherwise, which is not reflected in such financial statements.
(g) No written statementThe unaudited pro forma combined balance sheet of EPNGC and Tenneco Energy as at June 30, information1996 and the related unaudited pro forma combined statements of income of EPNGC and Tenneco Energy for the six-month period ended June 30, report1996 set forth in the Joint Proxy Statement, financial statement, exhibit or schedule furnished by or on behalf copies of such Borrower which have been delivered to the Administrative AgentLenders were prepared from financial statements referred to in Section 4.1(f), any Lender or any LC Issuing Bank which were prepared in connection accordance with generally accepted accounting principles, are complete and correct in all material respects and have been prepared on the syndication or negotiation basis described therein and show the combined financial position and results of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement operations of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make EPNGC and Tennessee as if the statements thereinTransaction had occurred, in the light case of the circumstances under which they werecombined balance sheet, areon June 30, or will be made1996, not misleadingand in the case of combined statements of income, as of January 1, 1995.
(h) Except Annexed hereto as disclosed in Schedule IV is a correct and complete list as of the Disclosure Documentsdate hereof of all Subsidiaries of Tennessee that will be part of Tenneco Energy after giving effect to the Transaction showing, as to each such Borrower Subsidiary, its name, the jurisdiction of its incorporation and each Significant Subsidiary the ownership of the capital stock of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itSubsidiary.
(ij) No accumulated funding deficiency (as defined There is no action, suit or proceeding pending, or to the knowledge of any Borrower threatened, against or involving the Company, any Principal Subsidiary or any Restricted Affiliate in Section 302 any court, or before any arbitrator of ERISA and Section 412 any kind, or before or by any governmental body, which in the reasonable judgment of the Internal Revenue CodeCompany (taking into account the exhaustion of all appeals) that could reasonably purports to affect the legality, validity, binding effect or enforceability of this Agreement or the Notes, or, except as set forth in Schedule III, would have a Material Adverse Effect.
(k) The Company, Tennessee, each Principal Subsidiary and each Restricted Affiliate have duly filed all tax returns required to be expected filed, and have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the failure to pay which would have a Material Adverse Effect, whether unless and to the extent only that the same are being contested in good faith and by appropriate proceedings by the Company, Tennessee, the appropriate Subsidiary or the appropriate Restricted Affiliate.
(l) The Company, Tennessee, each Principal Subsidiary and each Restricted Affiliate have good title to their respective properties and assets, free and clear of all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not waivedmaterially interfere with the business or operations of the Company, exists Tennessee, such Subsidiary or such Restricted Affiliate as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(m) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan. Such Borrower Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g).
(n) Each Plan has not complied with the applicable provisions of ERISA and the Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(o) The statement of assets and liabilities of each Plan and the statements of changes in fund balance and in financial position, or the statement of changes in net assets available for plan benefits, for the most recent plan year for which an accountant's report with respect to such Plan has been prepared, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(p) None of the Company, Tennessee or any ERISA Affiliate has incurred, and does not presently expect or is reasonably expected to incur, any withdrawal liability under Withdrawal Liability to any Multiemployer Plan which, when aggregated with all other amounts required to be paid to Multiemployer 52 47 Plans in connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company.
(q) None of the Company, Tennessee or any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA with respect the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i).
(r) The Borrowers are not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance will be used to extend credit to others (other than to any Multiemployer Plan that could reasonably be expected to have Subsidiary of Tennessee) for the purpose of purchasing or carrying Margin Stock.
(s) No Borrower is an "investment company" or a Material Adverse Effect. Such "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(t) No Borrower and each is a "holding company" or a "subsidiary company" of its ERISA Affiliates have complied in all material respects with ERISA a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(u) The borrowings by the Borrowers under this Agreement and the Internal Revenue CodeNotes and the applications of the proceeds thereof as provided herein will not violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. Such Borrower All representations and each warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making 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” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is Advances and has been established or maintained, or to which contributions are or have been made or should be made according the execution and delivery to the terms Lenders of this Agreement and the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleNotes.
Appears in 1 contract
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso Natural Gas Co)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower and each Subsidiary Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the its jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedorganization.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment and the Loan Documents, as amended hereby, and the consummation by each Subsidiary Guarantor of the transactions contemplated herebyConsent and Confirmation attached hereto, are in each case within such BorrowerPerson’s corporate powers, have been duly authorized by all necessary action, and do not result in a default under or contravene any such Person’s Organic Documents and, in the case of the U.S. Borrower, after giving effect to the grant of the Pension Trustee Liens (ias provided for under this Amendment) such Borrower’s certificate the U.S. Borrower is in compliance with the covenants set forth in each of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesthe Sub Debt Documents referred to in Section 6(j)(i).
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 Governmental Authority or regulatory body other Person (other than those that have been duly obtained or any other third party made and which are in full force and effect) is required for the due execution, delivery and or performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower Amendment or any of its Significant Subsidiaries before any courtthe Loan Documents, governmental agency as amended hereby, or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication Pension Trustee Debenture (other than the filing thereof), to which it is or negotiation of this Agreement or included herein or delivered pursuant hereto contained, containsis to be a party, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light by each Subsidiary Guarantor of the circumstances under which they were, are, or will be made, not misleadingConsent and Confirmation attached hereto.
(hd) Except as disclosed in This Amendment has been duly executed and delivered by such Borrower, and the Disclosure Consent and Confirmation attached hereto has been duly executed and delivered by each Subsidiary Guarantor. This Amendment and each of the other Loan Documents, as amended hereby, to which such Borrower is a party, and each Significant Subsidiary the Consent and Confirmation attached hereto, are legal, valid and binding obligations of such Borrower is or such Subsidiary Guarantor, as applicable, enforceable against such entity in material compliance accordance with all laws their respective terms (including ERISA and Environmental Laws) rulesexcept, regulations and orders of in any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effectcase, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of ERISAequity). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation duly organizedincorporated, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, State of Delaware. Each Principal Subsidiary and each Significant Subsidiary of such Borrower Restricted Affiliate is duly organizedincorporated, validly existing and in good standing under the laws of in the jurisdiction of its incorporation. The Company, each Principal Subsidiary and 49 44 each Restricted Affiliate possess all corporate powers and all other authorizations and licenses necessary to engage in its business and operations as now conducted, the failure to obtain or maintain which it is incorporated or otherwise organizedwould have a Material Adverse Effect.
(b) The execution, delivery and performance by such (i) each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and the consummation its Notes (as applicable) and (ii) each Restricted Affiliate of the transactions contemplated hereby, its Restricted Affiliate Guaranty are within such Borrower’s 's or Restricted Affiliate's, as the case may be, corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (iA) such Borrower’s certificate of incorporation 's or Restricted Affiliate's, as the case may be, charter or by-laws, (ii) law binding or affecting such Borrower laws or (iiiB) any law or any material contractual restriction binding on or affecting such Borrower or any of its propertiesRestricted Affiliate, as the case may be.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by (i) such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable) or (ii) any Restricted Affiliate of its Restricted Affiliate Guaranty, except for filings necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Governmental Approvals that Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to which it is a party (as applicable) when delivered hereunder shall constitute and its Restricted Affiliate Guaranty when delivered hereunder shall constitute, the legal, valid and binding obligations of each Borrower or Restricted Affiliate, as the case may be, enforceable against such Borrower or Restricted Affiliate, as the case may be, in accordance with their respective terms, except as may be required to be obtained limited by such Borrower in connection with any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower EPNGC and its Consolidated consolidated Subsidiaries as at December 31, 20071995, and the related consolidated statements of income and cash flows of such Borrower EPNGC and its Consolidated consolidated Subsidiaries for the fiscal year then ended, accompanied reported on by an opinion of Deloitte Coopers & Touche LLPLybrxxx XXX, an independent registered public accounting firmaccountants, copies of each of which have been furnished to each Lenderthe Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of such Borrower EPNGC and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of 50 45 the operations of such Borrower EPNGC and its Consolidated consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since , and since December 31, 20071995, there has been no Material Adverse Change material adverse change in such condition or operations. The unaudited consolidated balance sheet of EPNGC and its consolidated Subsidiaries as of June 30, 1996, and the related consolidated statements of income and cash flows of EPNGC and its consolidated Subsidiaries for the six months then ended, certified by the chief financial officer of EPNGC, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of EPNGC and its consolidated Subsidiaries for the three months then ended, all in accordance with respect generally accepted accounting principles consistently applied (except as approved by the chief financial officer of EPNGC and as disclosed therein) and subject to such Borrowernormal year-end audit adjustments.
(f) The unaudited pro forma combined balance sheet of EPNGC and Tenneco Energy as at June 30, 1996 and the related unaudited pro forma combined statements of income of EPNGC and Tenneco Energy for the six-month period ended June 30, 1996 set forth in the Joint Proxy Statement, copies of which have been delivered to the Lenders, were prepared from financial statements referred to in Section 4.1(e), which were prepared in accordance with generally accepted accounting principles, are complete and correct in all material respects and have been prepared on the basis described therein and show the combined financial position and results of operations of EPNGC and Tennessee as if the Transaction had occurred, in the case of the combined balance sheet, on June 30, 1996, and in the case of combined statements of income, as of January 1, 1995.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Company and each Significant Subsidiary of such Borrower its Subsidiaries is in material compliance with all laws (including ERISA and Environmental Laws) laws, rules, regulations and orders of any governmental authority applicable to itit or its property except where the failure to comply, individually or in the aggregate, would not in the reasonable judgment of the Company be expected to result in a Material Adverse Effect.
(ih) No accumulated funding deficiency (as defined There is no action, suit or proceeding pending, or to the knowledge of any Borrower threatened, against or involving the Company, any Principal Subsidiary or any Restricted Affiliate in Section 302 any court, or before any arbitrator of ERISA and Section 412 any kind, or before or by any governmental body, which in the reasonable judgment of the Internal Revenue CodeCompany (taking into account the exhaustion of all appeals) that could reasonably be expected to would have a Material Adverse Effect, whether or not waivedwhich purports to affect the legality, exists with respect validity, binding effect or enforceability of this Agreement or the Notes. 51 46
(i) The Company, each Principal Subsidiary and each Restricted Affiliate have duly filed all tax returns required to any Plan. Such Borrower has not incurredbe filed, and does not presently expect have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the failure to incur, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to pay which would have a Material Adverse Effect. Such Borrower , unless and to the extent only that the same are being contested in good faith and by appropriate proceedings by the Company, the appropriate Subsidiary or the appropriate Restricted Affiliate.
(j) The Company, each Principal Subsidiary and each Restricted Affiliate have good title to their respective properties and assets, free and clear of its ERISA Affiliates have all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not materially interfere with the business or operations of the Company, such Subsidiary or such Restricted Affiliate as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(k) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g).
(l) Each Plan has complied in all material respects with the applicable provisions of ERISA and the Internal Revenue Code. Such Borrower Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(m) The statement of assets and liabilities of each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign PlansPlan other than, if any. As used herein, the term “Plan” shall mean 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 prior to the terms Merger, any Plan of the plan by any Borrower Tennessee or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined Subsidiaries and the statements of changes in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensationfund balance and in financial position, or other employee benefit planthe statement of changes in net assets available for plan benefits, program for the most recent plan year for which an accountant's report with respect to such Plan has been prepared, copies of which report have been furnished to the Administrative Agent, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(n) Neither the Company nor any ERISA Affiliate has incurred, or arrangement maintained by is reasonably expected to incur, any entity subsidiary Withdrawal Liability to any Multiemployer Plan which, under applicable local foreign law, is when aggregated with all other amounts required to be funded through paid to Multiemployer Plans in connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company. 52 47
(o) Neither the Company nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i).
(p) The Borrowers are not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance will be used to extend credit to others (other than to any Subsidiary of the Company) for the purpose of purchasing or carrying Margin Stock.
(q) No Borrower is an "investment company" or a trust "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(r) No Borrower is a "holding company" or other funding vehiclea "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) The borrowings by the Borrowers under this Agreement and the Notes and the applications of the proceeds thereof as provided herein will not violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. All representations and warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making of the Advances and the execution and delivery to the Lenders of this Agreement and the Notes.
Appears in 1 contract
Samples: Revolving Credit and Competitive Advance Facility Agreement (El Paso Natural Gas Co)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it State of Kansas. Sprint Capital is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedState of Delaware.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and the Notes to be executed by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, bylaws or (ii) any law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required Agreement or the Notes to be obtained executed by it.
(d) This Agreement has been duly executed and delivered by each Borrower. This Agreement is the legal, valid and binding obligation of each Borrower enforceable against such Borrower in accordance with its terms. Each of the Notes to be executed by a Borrower when delivered hereunder will have been duly executed and delivered by such Borrower in connection with any Extension of Credit to or for and will be the account legal, valid and binding obligation of such Borrower, each of which Governmental Approvals will have been obtained and will be enforceable against such Borrower in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borroweraccordance with its terms.
(e) The Consolidated balance sheet of the Company and its Subsidiaries as at December 31, 1998, and the related Consolidated statements of income and cash flows of the Company and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants, and the Consolidated balance sheet of the Company and its Subsidiaries as at March 31, 1999, and the related Consolidated statements of income and cash flows of the Company and its Subsidiaries for the three months then ended, duly certified by the chief financial officer, chief accounting officer or treasurer of the Company, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 1999, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Company and its Subsidiaries as at such dates and the Consolidated results of the operations of the Company and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 1998, there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower the Company or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) could be reasonably likely to have a Material Adverse EffectEffect or (ii) purports to affect the legality, except as disclosed in validity or enforceability of this Agreement or any Note or the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results consummation of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertransactions contemplated hereby.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, is engaged in the light 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 circumstances under which they wereFederal Reserve System), are, or and no proceeds of any Advance will be made, not misleadingused to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) Except as disclosed in the Disclosure Documents, such Borrower The Company and each Significant Subsidiary of such Borrower its Subsidiaries owns, or is in material compliance with licensed to use, all laws (including ERISA trademarks, tradenames, copyrights, technology, know-how and Environmental Laws) rules, regulations and orders processes necessary for the conduct of any governmental authority applicable its business as currently conducted except for those the failure to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that own or license which could not reasonably be expected to have a Material Adverse EffectEffect (the "Intellectual Property"). No claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, whether or nor does such Borrower know of any valid basis for any such claim, except, in either case, for such claims that in the aggregate could not waived, exists with respect to any Plan. Such 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. Such The use of such Intellectual Property by the Company and its Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) No Borrower is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. No Borrower is subject to regulation under any Federal or State statute or regulation which limits its ability to incur Debt.
(j) The Company owns all of the shares of the issued and outstanding capital stock of Sprint Capital.
(k) The Company has (i) initiated a review and assessment of all areas within its and each of its ERISA Affiliates have complied in all material respects with ERISA Subsidiaries' business and operations that could be adversely affected by the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plans, if any. As risk that computer applications used herein, by the term “Plan” shall mean 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 any Borrower Company or any of its ERISA AffiliatesSubsidiaries may be unable to recognize and perform properly date sensitive functions involving certain dates prior to and any date after December 31, 1999 (the "Year 2000 Problem"), (ii) developed a plan and timetable for addressing the Year 2000 Problem on a timely basis and (iii) to date, implemented that plan in accordance with such timetable. The term “Multiemployer Plan” shall mean Based on the foregoing, the Company believes that all computer applications that are material to its or any Plan which is of its Subsidiaries' business and operations are reasonably expected on a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required timely basis to be funded through able to perform properly date-sensitive functions for all dates before, on and after January 1, 2000, except to the extent that a trust or other funding vehiclefailure to do so could not reasonably be expected to have a Material Adverse Effect and except to the extent the failure of computer applications to perform is due to circumstances beyond the Company's control.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents Borrowers represent and warrants as followswarrant to the Lenders and the Agent (both before and after giving effect to this Third Amendment) that:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws a. Each of the jurisdiction in which it is incorporated or otherwise organizedBorrowers has the corporate power and authority, and each Significant Subsidiary of such Borrower is duly organizedthe legal right, validly existing to execute, deliver and in good standing under the laws perform this Third Amendment.
b. Each of the jurisdiction in which it is incorporated or otherwise organized.
(b) The Borrowers has taken all necessary corporate action to authorize the execution, delivery and performance by such Borrower of this AgreementThird Amendment.
c. No consent or authorization of, and filing with, notice to or other act by, or in respect of, any Governmental Authority or any other Person is required in connection with this Third Amendment or the consummation execution, delivery, performance, validity or enforceability of this Third Amendment, or the performance, validity or enforceability of the transactions contemplated herebyCredit Agreement except consents, are within such Borrower’s corporate powersauthorizations, filings and notices which have been duly authorized by all necessary action, obtained or made and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesare in full force and effect.
(c) d. This Agreement Third Amendment has been duly executed and delivered by such Borroweron behalf of the Borrowers. This Third Amendment and the Credit Agreement is as amended and supplemented thereby constitute the legal, valid and binding obligation obligations of such Borrower the Borrowers and are enforceable against such Borrower the Borrowers in accordance with its terms, their terms except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to by general equitable principles of equity (regardless of whether such remedy enforcement is sought in a proceeding by proceedings in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing).
(d) No authorization or approval or other action bye. Subject to the effectiveness of the waivers in Section 2 hereof, and no the amendments in Section 3 hereof, neither an Event of Default, as defined in the Credit Agreement, nor any event which with the lapse of time or notice to or filing withboth could become an Event of Default, any governmental authority or regulatory body or any other third party has occurred and is required for continuing as of the due date hereof.
f. Neither the execution, delivery and or performance by such any Borrower of this Agreementthe Third Amendment nor the consummation of any transactions contemplated therein will conflict with, violate, constitute a breach of or a default (with the passage of time or otherwise) under, require the consent of any Person (other than consents already obtained and in full force and effect) under, or result in the imposition of (or the obligation to create) a Lien on any assets of any Borrower (except for such Governmental Approvals that may be required existing Liens pursuant to be obtained by such Borrower in connection with any Extension of Credit the Collateral Agreements and the Senior Note Documents) under or pursuant to or for the account Organizational Documents of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on any Federal, state, local or prior to the date of any Extension of Credit to or for the account of such Borrower.
foreign statute, law (e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, common law) or ordinance, or any Environmental Actionjudgment, affecting decree, rule, regulation or order of any Governmental Authority application to such Borrower or any of its Significant Subsidiaries before properties or any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse EffectApplicable Agreement, except as disclosed for such conflicts, violations, breaches, defaults, lack of any consents or imposition of Liens that would not, individually or in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31aggregate, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower Entry by the Borrowers into and each performance by the Borrowers of its ERISA Affiliates have complied the Third Amendment will not result in a default under any Senior Note Document.
g. Each of the representations and warranties set forth in Article III of the Credit Agreement is true and correct as of the date hereof in all material respects, except (i) any such representations and warranties which explicitly relate to an earlier date, which such representations and warranties were true and correct as of such date in all material respects and (ii) as disclosed in any filings by Parent with ERISA and the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable Commission or any reports delivered by the Parent pursuant to its Foreign Plans, if any. As used herein, the term “Plan” shall mean 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 5.01 of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleCredit Agreement.
Appears in 1 contract
Samples: Second Lien Term Loan Credit Agreement (Global Aviation Holdings Inc.)
Representations and Warranties of the Borrowers. Each Borrower of the Parent Borrower, and in the case of paragraphs (a), (b), (c), (d) and (g) below each Foreign Subsidiary Borrower, represents and warrants as follows:
(a) Such Borrower is a corporation duly organizedorganized or formed, validly existing and in good standing under the laws of the its jurisdiction in which it is incorporated of organization or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedformation.
(b) The execution, delivery and performance by such Borrower of this AgreementAgreement and the Notes made by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate (or other) powers, have been duly authorized by all necessary corporate (or other) action, and do not contravene (i) such Borrower’s certificate of incorporation charter or by-laws, laws (or other organizational documents) or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 Governmental Authority or regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this AgreementAgreement or the Notes made by it, except except, in the case of any such Foreign Subsidiary Borrower, for such Governmental Approvals that may be authorizations, approvals, consents, notices and filings which have been obtained or made (or which are not required to be obtained by such Borrower in connection with any Extension or made prior to the initial Extensions of Credit to or for the account of such Foreign Subsidiary Borrower, each of which Governmental Approvals will have been obtained ) and will be are in full force and effect on or prior to effect.
(d) This Agreement has been, and each of the date Notes when delivered by such Borrower hereunder will have been, duly executed and delivered by such Xxxxxxxx. This Agreement is, and each of any Extension of Credit to or for the account Notes when delivered by such Borrower hereunder will be, the legal, valid and binding obligation of such BorrowerBorrower enforceable against such Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Parent Borrower and its Subsidiaries as at August 31, 2010, and the related Consolidated statements of income and cash flows of the Parent Borrower and its Subsidiaries for the twelve-months then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, and the Consolidated balance sheet of the Parent Borrower and its Subsidiaries as at November 30, 2010, and the related Consolidated statements of income and cash flows of the Parent Borrower and its Subsidiaries for the three months then ended, duly certified by the Chief Financial Officer, Treasurer, Assistant Treasurer, Controller or Assistant Controller of the Parent Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at November 30, 2010, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Parent Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Parent Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP consistently applied. Except as disclosed in the Parent Borrower’s Quarterly Report on Form 10-Q for the quarter ending November 30, 2010, since August 31, 2010, there has been no Material Adverse Change.
(f) There is no pending or or, to the knowledge of such Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such the Parent Borrower or any of its Significant Consolidated Subsidiaries before any court, governmental agency or arbitrator that (i) is reasonably likely to have a Material Adverse EffectEffect (other than the Disclosed Litigation), except as disclosed and there has been no material adverse change in the Disclosure Documents.
(f) The consolidated balance sheet status of, or financial effect on the Parent Borrower or any of each Borrower and its Consolidated Subsidiaries as at December 31a result of, 2007the Disclosed Litigation or (ii) purports to affect the legality, and validity or enforceability of this Agreement, any Note or the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results consummation of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertransactions contemplated hereby.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, containsis not an “investment company”, or will contain any material misstatement of fact or intentionally omitteda company “controlled” by an “investment company”, omits, or will omit to state any material fact necessary to make within the statements therein, in the light meaning of the circumstances under which they wereInvestment Company Act of 1940, are, or will be made, not misleadingas amended.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Samples: Credit Agreement (Monsanto Co /New/)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation Business Entity duly organizedformed, validly existing and and, if applicable, in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant State of Delaware. Each Principal Subsidiary of such Borrower is duly organizedorganized or formed, validly existing and and, if applicable, in good standing under the laws of in the jurisdiction of its organization or formation. The Company and each Principal Subsidiary possess all applicable Business Entity powers and all other authorizations and licenses necessary to engage in its business and operations as now conducted, the failure to obtain or maintain which it is incorporated or otherwise organizedwould have a Material Adverse Effect.
(b) The execution, delivery and performance by such each Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party and the consummation of the transactions contemplated hereby, its Notes (as applicable) are within such Borrower’s corporate 's applicable Business Entity powers, have been duly authorized by all necessary applicable Business Entity action, and do not contravene (iA) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower 's organizational documents or (iiiB) any law or any material contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, each Joinder Agreement, if any, to which it is a party or its Notes (as applicable), except for those necessary to comply with laws, rules, regulations and orders required in the ordinary course to comply with ongoing obligations of such Governmental Approvals that may be required Borrower under Section 5.1(a) and (b).
(d) This Agreement constitutes, its Notes and each Joinder Agreement, if any, to be obtained by which it is a party (as applicable) when delivered hereunder shall constitute the legal, valid and binding obligations of each Borrower, enforceable against such Borrower in connection accordance with their respective terms, except as may be limited by any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower the Company and its Consolidated consolidated Subsidiaries as at December 31, 20072000, and the related consolidated statements of income and cash flows of such Borrower the Company and its Consolidated consolidated Subsidiaries for the fiscal year then ended, accompanied reported on by an opinion of Deloitte & Touche PricewaterhouseCoopers LLP, an independent registered public accounting firmaccountants, 37 copies of each of which have been furnished to each Lenderthe Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated financial condition of such Borrower the Company and its Consolidated consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower the Company and its Consolidated consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles GAAP consistently applied. Since , and since December 31, 20072000, there has been no Material Adverse Change material adverse change in such condition or operations. The unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as of March 31, 2001, and the related consolidated statements of income and cash flows of the Company and its consolidated Subsidiaries for the three months then ended, certified by the chief financial officer of the Company, copies of which have been furnished to the Administrative Agent and the Lenders prior to the date hereof, fairly present the consolidated results of operations of the Company and its consolidated Subsidiaries for the three months then ended, all in accordance with respect GAAP consistently applied (except as approved by the chief financial officer of the Company and as disclosed therein) and subject to such Borrowernormal year-end audit adjustments.
(gf) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Company and each Significant Subsidiary of such Borrower its Subsidiaries is in material compliance with all laws (including ERISA and Environmental Laws) laws, rules, regulations and orders of any governmental authority applicable to itit or its property except where the failure to comply, individually or in the aggregate, would not in the reasonable judgment of the Company be expected to result in a Material Adverse Effect.
(ig) No accumulated funding deficiency (There is no action, suit or proceeding pending, or to the knowledge of any Borrower threatened, against or involving the Company or any Principal Subsidiary in any court, or before any arbitrator of any kind, or before or by any governmental body, existing as defined at the Effective Date which in Section 302 of ERISA and Section 412 the reasonable judgment of the Internal Revenue CodeCompany (taking into account the exhaustion of all appeals) that could reasonably be expected to would have a Material Adverse Effect, whether or not waivedwhich purports to affect the legality, exists with respect validity, binding effect or enforceability of this Agreement or the Notes.
(h) The Company and each Principal Subsidiary have duly filed all tax returns required to any Plan. Such Borrower has not incurredbe filed, and does not presently expect have duly paid and discharged all taxes, assessments and governmental charges upon it or against its properties now due and payable, the failure to incurfile or pay which, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to as applicable, would have a Material Adverse Effect. Such Borrower , unless and to the extent only that the same are being contested in good faith and by appropriate proceedings by the Company or the appropriate Subsidiary.
(i) The Company and each Principal Subsidiary have good title to their respective properties and assets, free and clear of its ERISA Affiliates have all mortgages, liens and encumbrances, except for mortgages, liens and encumbrances (including covenants, restrictions, rights, easements and minor irregularities in title) which do not materially interfere with the business or operations of the Company or such Subsidiary as presently conducted or which are permitted by Section 5.2(a), and except that no representation or warranty is being made with respect to Margin Stock.
(j) No Termination Event has occurred or is reasonably expected to occur with respect to any Plan which, with the giving of notice or lapse of time, or both, would constitute an Event of Default under Section 7.1(g). 44
(k) Each Plan has complied in all material respects with the applicable provisions of ERISA and the Internal Revenue Code. Such Borrower Code where the failure to so comply would reasonably be expected to result in an aggregate liability that would exceed 10% of the Net Worth of the Company.
(l) The statement of assets and liabilities of each Plan and the statements of its Subsidiaries have complied changes in all material respects fund balance and in financial position, or the statement of changes in net assets available for plan benefits, for the most recent plan year for which an accountant's report with foreign law applicable respect to its Foreign Plans, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and such Plan has been established or maintainedprepared, copies of which report have been furnished to the Administrative Agent, fairly present the financial condition of such Plan as at such date and the results of operations of such Plan for the plan year ended on such date.
(m) Neither the Company nor any ERISA Affiliate has incurred, or is reasonably expected to which contributions are or have been made or should be made according incur, any Withdrawal Liability to the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is when aggregated with all other amounts required to be funded through paid to Multiemployer Plans in connection with Withdrawal Liability (as of the date of determination), would exceed 10% of the Net Worth of the Company.
(n) Neither the Company nor any ERISA Affiliate has received any notification that any Multiemployer Plan is in reorganization, insolvent or has been terminated, within the meaning of Title IV of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization, insolvent or to be terminated within the meaning of Title IV of ERISA the effect of which reorganization, insolvency or termination would be the occurrence of an Event of Default under Section 7.1(i).
(o) No Borrower is an "investment company" or a trust "company" controlled by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(p) No Borrower is a "holding company" or other funding vehiclea "subsidiary company" of a "holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(q) The borrowings by the Borrowers under this Agreement and the Notes and the applications of the proceeds thereof as provided herein will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. All representations and warranties made by the Borrowers herein or made in any certificate delivered pursuant hereto shall survive the making of the Advances and the execution and delivery to the Lenders of this Agreement and the Notes.
Appears in 1 contract
Samples: 364 Day Revolving Credit and Competitive Advance Facility Agreement (El Paso Tennessee Pipeline Co)
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary State of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits incorporation.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and the other Loan Documents to be delivered by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, laws or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been been, and each of the other Loan Documents to be delivered by it when delivered hereunder will have been, duly executed and delivered by such each Borrower. This Agreement is is, and each of the other Loan Documents when delivered hereunder will be, the legal, valid and binding obligation of such each Borrower party thereto enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this Agreement, except for such Governmental Approvals that may be required Agreement or the other Loan Documents to be obtained delivered by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerit.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental ActionClaim, affecting such Borrower the Holding Company or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) would be reasonably likely to have a Material Adverse EffectEffect or (ii) purports to affect the legality, except as disclosed in validity or enforceability of this Agreement or any Note or the Disclosure Documentsconsummation of the transactions contemplated hereby.
(f) The consolidated Consolidated balance sheet of each Borrower the Holding Company and its Consolidated Subsidiaries as at December May 31, 20071998, and the related consolidated Consolidated statements of income and cash flows of such Borrower the Holding Company and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte Ernst & Touche Young LLP, an independent registered public accounting firmaccountants, the consolidating balance sheet of the Holding Company and its Subsidiaries as at May 31, 1998, and the related consolidating statements of income and cash flows of the Holding Company and its Subsidiaries for the fiscal year then ended, duly certified by the chief financial officer of the Holding Company, and the Consolidated and consolidating balance sheet of the Holding Company and its Subsidiaries as at February 28, 1999, and the related Consolidated and consolidating statements of income and cash flows of the Holding Company and its Subsidiaries for the nine months then ended, duly certified by the chief financial officer of the Holding Company, copies of each of which have been furnished to each Lender, fairly present present, subject, in the consolidated case of said balance sheet as at February 28, 1999, and said statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of such Borrower the Holding Company and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of such Borrower the Holding Company and its Consolidated Subsidiaries for the period periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. Since December May 31, 20071998, there has been no Material Adverse Change with respect to such BorrowerChange.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they wereBorrowers and their Subsidiaries has good, aremarketable fee or leasehold title (as applicable) or ownership interest to all of the material assets and properties of the Borrowers and their Subsidiaries, or will be madefree and clear of all Liens, not misleadingother than Liens permitted by the Loan Documents.
(h) Except as disclosed in the Disclosure Documents, such The operations and properties of each Borrower and each Significant Subsidiary of such Borrower is its Subsidiaries comply in all material respects with all applicable Environmental Laws, all past non-compliance with all laws such Environmental Laws has been resolved without material ongoing obligations or costs, and no circumstances exist that could reasonably be likely to (including ERISA and i) form the basis of an Environmental LawsClaim against either Borrower or any of its Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) rulescause any such property to be subject to any restrictions on ownership, regulations and orders of occupancy, use or transferability under any governmental authority applicable to itEnvironmental Law that could have a Material Adverse Effect.
(i) No accumulated funding deficiency Set forth on Schedule 4.01(i) hereto is a complete and accurate list of all Subsidiaries of each Borrower as of the date hereof, showing (as defined in Section 302 to each such Subsidiary) the jurisdiction of ERISA and Section 412 its incorporation. All of the Internal Revenue Codeoutstanding capital stock and other ownership interests (other than directors qualifying shares) in each Borrower's Subsidiaries has been validly issued, are fully paid and non-assessable and are owned by such Borrower or one or more of its Subsidiaries free and clear of all Liens and, as of the date hereof, free of any outstanding options, warrants, rights of conversion or purchase or similar rights.
(j) Each of the outstanding securities issued by the Holding Company was duly authorized and validly issued, is fully paid and non-assessable, and is not and will not be subject to any preemptive or similar right or restriction. Each of those outstanding securities was acquired from the issuer in a transaction in compliance with the Securities Act of 1933, as amended, and other applicable laws.
(k) No Borrower is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(l) No Borrower is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(m) As of the date hereof and as of any date on or prior to December 31, 1999, the Borrowers have (i) initiated a review and assessment of their respective and each of their Subsidiaries' business and operations (including those affected by suppliers, vendors and customers) that could be adversely affected by the risk that computer applications used by the Borrowers or any of their Subsidiaries (or suppliers, vendors and customers) may be unable to recognize and perform properly date sensitive functions involving certain dates prior to and any date after December 31, 1999 (the "Year 2000 Problem"), (ii) developed a plan and timetable for addressing the Year 2000 Problem on a timely basis and (iii) to date, implemented that plan materially in accordance with such timetable (as adjusted from time to time). Based on the foregoing, the Borrowers believe that all computer applications (including those of their suppliers, vendors and customers) that are material to its or any of its Subsidiaries' business and operations are reasonably expected on a timely basis to be able to perform properly date-sensitive functions for all dates before, on and after January 1, 2000, except to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants with respect to itself as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own its property and assets and to carry on its business as now conducted and is qualified to do business in which it every jurisdiction where, because of the nature of its business or property, such qualification is incorporated required, except where the failure so to qualify would not have a material adverse effect on the financial condition, properties, prospects or otherwise organized, and each Significant Subsidiary operations of such Borrower. Such Borrower is duly organizedhas the corporate power to execute, validly existing deliver and in good standing perform its obligations under the laws of the jurisdiction in which it is incorporated or otherwise organizedLoan Documents and to borrow hereunder.
(b) The execution, delivery and performance of the Loan Documents by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate or other similar action, and do not and will not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, laws or any law or legal restriction or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has Except as disclosed in such Borrower's Disclosure Documents, such Borrower is not in violation of any law or in default with respect to any judgment, writ, injunction, decree, rule or regulation (including any of the foregoing relating to environmental laws and regulations) of any court or governmental agency or instrumentality where such violation or default would reasonably be expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower.
(d) All Governmental Approvals referred to in clause (i) of the definition of "Governmental Approval" have been duly executed obtained or made and delivered are in full force and effect, and all applicable periods of time for review, rehearing or appeal with respect thereto have expired. Such Borrower has obtained or made all Governmental Approvals referred to in clause (ii) of the definition of "Governmental Approvals", and such Governmental Approvals are in full force and effect, except (A) those which are not yet required but which are obtainable in the ordinary course of business as and when required, (B) those the absence of which would not materially adversely affect the financial condition, properties, prospects or operations of such Borrower and (C) those which such Borrower is diligently attempting in good faith to obtain, renew or extend, or the requirement for which such Borrower is contesting in good faith by appropriate proceedings or by other appropriate means, in each case described in the foregoing clause (C), except as is disclosed in such Borrower. This Agreement 's Disclosure Documents, such attempt or contest, and any delay resulting therefrom, is not reasonably expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower or to magnify to any significant degree any such material adverse effect that would reasonably be expected to result from the absence of such Governmental Approval.
(e) The Loan Documents to which such Borrower is a party are legal, valid and binding obligation obligations of such Borrower enforceable against such Borrower in accordance with its their respective terms; subject to the qualification, except as however, that the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or enforcement of the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general application affecting rights and remedies of creditors and the enforcement application of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought considered 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents).
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows Financial Statements of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firmBorrower, copies of each of which have been furnished provided to the Administrative Agent and each Lenderof the Lenders, fairly present in all material respects the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower (in the case of CL&P and its Consolidated Subsidiaries PSNH on a consolidated basis) at and for the period ended on such datethe dates thereof, all and have been prepared in accordance with generally accepted accounting principles consistently applied. Since December 31June 30, 20072004, there has been no Material Adverse Change with respect to material adverse change in the consolidated (or in the case of WMECO and Yankee, unconsolidated) financial condition, business, operations, properties or prospects of such Borrower and its Subsidiaries, if any, taken as a whole, except as disclosed in such Borrower's Disclosure Documents.
(g) There is no pending or known threatened litigation, investigation, action or proceeding (including, without limitation, any action or proceeding relating to any environmental protection laws or regulations) affecting such Borrower or its properties before any court, governmental agency or arbitrator (i) which affects or purports to affect the legality, validity or enforceability of any Loan Document or (ii) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, would materially adversely affect the financial condition, properties, prospects or results of operations of such Borrower, except, for purposes of this clause (ii) only, such as is described in such Borrower's Disclosure Documents.
(h) No ERISA Plan Termination Event has occurred nor is reasonably expected to occur with respect to any ERISA Plan which would materially adversely affect the financial condition, properties, prospects or operations of such Borrower taken as a whole, except as disclosed to the Lenders and consented to by the Majority Lenders in writing. Since the date of the most recent Schedule B (Actuarial Information) to the annual report of each such ERISA Plan (Form 5500 Series), there has been no material adverse change in the funding status of the ERISA Plans referred to therein, and no "prohibited transaction" (as defined in Section 4975 of the Internal Revenue Code of 1986, as amended, and in ERISA) has occurred with respect thereto that, singly or in the aggregate with all other "prohibited transactions" and after giving effect to all likely consequences thereof, would be reasonably expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower. Neither such Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any ERISA Multiemployer Plan, except as disclosed to and consented by the Majority Lenders in writing.
(i) Such Borrower has good and marketable title (or, in the case of personal property, valid title) or valid leasehold interests in its assets, except for (i) minor defects in title that do not materially interfere with the ability of such Borrower to conduct its business as now conducted and (ii) other defects that, either individually or in the aggregate, do not materially adversely affect the financial condition, properties, prospects or operations of such Borrower. All such assets and properties are free and clear of any Lien, other than Liens permitted under Section 7.02(a) hereof.
(j) All outstanding shares of capital stock having ordinary voting power for the election of directors of such Borrower have been validly issued, are fully paid and nonassessable and are owned beneficially by NU, free and clear of any Lien. NU is a "holding company" (as defined in the Public Utility Holding Company Act of 1935, as amended).
(k) Such Borrower has filed all tax returns (Federal, state and local) required to be filed and paid taxes shown thereon to be due, including interest and penalties, or, to the extent such Borrower is contesting in good faith an assertion of liability based on such returns, has provided adequate reserves in accordance with generally accepted accounting principles for payment thereof.
(l) No exhibit, schedule, report or other written statement, information, report, financial statement, exhibit or schedule furnished information provided by or on behalf of such Borrower or its agents to the Administrative Agent, any Lender Agent or any LC Issuing Bank the Lenders in connection with the syndication or negotiation negotiation, execution and closing of this Agreement or included herein or delivered pursuant hereto containedthe Loan Documents (including, containswithout limitation, or will contain the Financial Statements and the Information Memorandum (but excluding the projections contained in the Information Memorandum)) knowingly contained when made any material misstatement of fact or intentionally omitted, omits, or will omit knowingly omitted to state any material fact necessary to make the statements therein, contained therein not misleading in the light of the circumstances under which they werewere made. Except as has been disclosed to the Administrative Agent and each Lender, arethe projections delivered concurrently with the Information Memorandum were prepared in good faith on the basis of assumptions reasonable as of the date of the Information Memorandum, it being understood that such projections do not constitute a warranty or will binding assurance of future performance. As of the date of this Agreement, except as has been disclosed to the Administrative Agent and each Lender, nothing has come to the attention of the responsible officers of such Borrower that would indicate that any of such assumptions, to the extent material to such projections, has ceased to be made, not misleadingreasonable in light of subsequent developments or events.
(hm) Except as disclosed in All proceeds of the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
Advances shall be used (i) for the general corporate purposes of such Borrower, including to provide liquidity support for such Borrower's commercial paper, and (ii) to provide liquidity to the NU System Money Pool. No accumulated funding deficiency (as defined proceeds of any Advance will be used in Section 302 violation of, or in any manner that would result in a violation by any party hereto of, Regulation T, U or X promulgated by the Board of ERISA and Section 412 Governors of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether Federal Reserve System or not waived, exists with respect to any Plansuccessor regulations. Such Borrower has (A) is not incurred, an "investment company" within the meaning ascribed to that term in the Investment Company Act of 1940 and does (B) is not presently expect to incur, any withdrawal liability under Title IV engaged in the business of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each extending credit for the purpose of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established buying or maintained, or to which contributions are or have been made or should be made according to the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecarrying margin stock.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of its obligations in connection with this Agreement, and the consummation of the transactions contemplated hereby, Amendment are within such Borrower’s its corporate (or other organizational) powers, have been duly authorized by all necessary action, corporate (or other organizational) action and do not contravene and will not (i) such Borrower’s violate any provision of its articles or certificate of incorporation or by-lawsbylaws or similar organizing or governing documents of such Borrower, (ii) law binding or affecting contravene any Applicable Law which is applicable to such Borrower or Borrower, (iii) conflict with, result in a breach of or constitute (with notice, lapse of time or both) a default under any contractual restriction binding on material indenture or affecting instrument or other material agreement to which such Borrower is a party, by which it or any of its propertiesproperties is bound or to which it is subject, or (iv) except for the Liens granted in favor of the Administrative Agent pursuant to the Security Documents, result in or require the creation or imposition of any Lien upon any of its properties or assets, except, in the case of clauses (ii) and (iii) above, to the extent such contraventions, conflicts, breaches or defaults could not reasonably be expected to have a Material Adverse Effect.
(cb) This Agreement Such Borrower has been duly taken all necessary corporate (or other organizational) action to execute, deliver and perform this Amendment and has validly executed and delivered by such Borrowereach of this Amendment. This Agreement is Amendment constitutes the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as to the extent that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in generalgenerally, and except as the availability of the remedy of specific performance is subject to by general equitable principles or by principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(dc) No material consent, approval, authorization or approval or other action by, and no notice to to, or registration or filing with, any governmental authority Governmental Authority or regulatory body other Person is or any other third party is will be required for as a condition to or otherwise in connection with the due execution, delivery and performance by such Borrower of this Agreement, Amendment except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will as have been obtained or made and will be are in full force and effect and except filings necessary to perfect Liens created under the Loan Documents.
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Loan Documents are true and correct in all material respects on or prior to and as of the date of any Extension of Credit to or for the account hereof as though made on and as of such Borrowerdate (other than any such representations or warranties that, by their terms, refer to a specific date, in which case as of such specific date).
(e) There is no pending No Default or threatened actionEvent of Default shall exist immediately prior to and after giving effect to (i) this Amendment, suit, investigation, litigation or proceeding, including, without limitation, (ii) the Incremental Increases and (iii) any Environmental Action, affecting such Borrower or any Extension of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed Credit made in the Disclosure Documentsconnection herewith.
(f) The consolidated balance sheet aggregate amount of each Borrower Indebtedness incurred and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished outstanding pursuant to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results Section 9.1(l) of the operations of such Borrower Credit Agreement, prior to and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower after giving effect to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign lawIncremental Increases, is required to be funded through a trust or other funding vehicleless than $25,000,000.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers hereby represent and warrants warrant as followsof the date hereof and as of the Amendment Effective Date that:
(a) Such Borrower is a corporation duly organizedeach Credit Party has the corporate or other organizational power and authority to execute, validly existing deliver and carry out the terms and provisions of this Amendment and each other Credit Document executed or to be executed in good standing under the laws of the jurisdiction in connection with this Amendment to which it is incorporated a party and has taken all necessary corporate or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under other organizational action to authorize the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, Amendment and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation each other Credit Document executed or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement to be executed in connection with this Amendment to which it is a party. Each Credit Party has been duly executed and delivered by such Borrower. This Agreement this Amendment and each other Credit Document executed or to be executed in connection with this Amendment to which it is a party and this Amendment and each Credit Document executed or to be executed in connection with this Amendment constitutes the legal, valid and binding obligation of such Borrower Credit Party enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance insolvency or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingequity.
(db) 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 neither the due execution, delivery and or performance by such Borrower any Credit Party of this Agreement, except for such Governmental Approvals that may be required Amendment and each other Credit Document executed or to be obtained by such Borrower executed in connection with any Extension this Amendment to which it is a party nor compliance with the terms and provisions thereof nor the consummation of Credit to the transactions contemplated hereby or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
thereby (e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, the consummation of the Tender Offer and the incurrence of the Term Loan Facility Indebtedness) will (i) contravene any Environmental Actionapplicable provision of any material law, affecting such Borrower statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality; (ii) result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Lien upon any of the property or assets of RailAmerica or any of the Restricted Subsidiaries (other than Liens created under the Credit Documents or securing Term Loan Facility Indebtedness), pursuant to the terms of any material indenture (including the Secured Note Indenture, any loan agreement, lease agreement, mortgage, deed of trust, agreement or other material instrument to which RailAmerica or any of the Restricted Subsidiaries is a party or by which it or any of its Significant Subsidiaries before property or assets is bound); or (c) violate any courtprovision of the certificate of incorporation, governmental agency By-Laws or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed other constitutional documents of RailAmerica or any of the Restricted Subsidiaries;
(c) each of the representations and warranties of any Credit Party contained in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender Credit Agreement or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower other Credit Document are true and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied correct in all material respects with ERISA (unless stated to relate to a specific earlier date, in which case, such representations and the Internal Revenue Code. Such Borrower warranties are true and each of its Subsidiaries have complied correct in all material respects with foreign law applicable to its Foreign Plans, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” as of such earlier date); and
(as defined in Section 3 d) no Default or Event of ERISA) which Default has occurred and 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecontinuing.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers represents and warrants as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organizedthereof has the right, validly existing power and in good standing under authority and has taken all necessary corporate and other action to authorize the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of Agreement in accordance with its propertiesterms.
(cb) This Agreement has been duly executed and delivered by such Borrower. This Agreement the duly authorized officers of each Borrower that is a party hereto and constitutes the legal, valid and binding obligation of such each Borrower that is a party hereto, enforceable against such Borrower in accordance with its terms, except as the such enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar state or federal debtor relief laws affecting from time to time in effect which affect the enforcement of creditors’ rights in general, general and except as the availability of equitable remedies.
(c) No consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the remedy execution, delivery, performance, validity or enforceability of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingthis Agreement.
(d) No authorization or approval or other action by, The representations and no notice to or filing with, any governmental authority or regulatory body or warranties set forth in Article V of the Credit Agreement and any other third party is required for Loan Document are true and correct as of the due execution, delivery and performance by such Borrower of this Agreementdate hereof, except for any such Governmental Approvals representation and warranty that may specifically refers to an earlier date, in which case such representation and warranty shall be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account true and correct as of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerearlier date.
(e) There is After giving effect to this Agreement, no pending Default or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any Event of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure DocumentsDefault exists.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007Loan Documents continue to create a valid security interest in, and Lien upon, the related consolidated statements Collateral, in favor of income and cash flows of such Borrower and its Consolidated Subsidiaries the Administrative Agent, for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results benefit of the operations of such Borrower Lenders, which security interests and its Consolidated Subsidiaries for the period ended on such date, all Liens are perfected in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect the terms of the Loan Documents and prior to such Borrowerall Liens other than Permitted Encumbrances.
(g) No written statementExcept as specifically provided in this Agreement, information, report, financial statement, exhibit the Obligations of the Borrowers are not reduced or schedule furnished modified by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, and are not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect subject to any Plan. Such Borrower has not incurredoffsets, 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established defenses or maintained, or to which contributions are or have been made or should be made according to the terms of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecounterclaims.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower the Borrowers of this AgreementAmendment, and the consummation of the transactions contemplated herebyall other Loan Documents, are within such Borrower’s corporate powersas amended, to which any Borrower is or will be a party, have been duly authorized by all necessary action, corporate action of each Borrower and do not contravene (and will not i) such Borrower’s certificate of incorporation contravene the charter or by-lawslaws of the any Borrower, (ii) law binding violate in any material respect any provision of any applicable law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or affecting such Borrower or (award presently in effect, iii) result in a breach of or constitute a default under any contractual restriction binding on indenture or affecting such loan or credit agreement or any other agreement, lease or instrument to which any Borrower or any Subsidiary of its propertiesthe Borrowers is a party or by which they or their properties may be bound or affected, or iv) 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 as required hereunder) upon or with respect to any of the properties now owned or hereafter acquired by any Borrower; to the best of each Borrower's knowledge neither Borrower nor any Subsidiary of the Borrowers is in default under any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(db) 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 the due execution, delivery and performance by such Borrower the Borrowers of this AgreementAmendment, except for such Governmental Approvals that may be required or any of the Loan Documents, as amended, to which any Borrower is or is to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowera party.
(ec) There is no pending or threatened action, suit, investigation, litigation action or proceeding, including, without limitation, proceeding affecting any Environmental Action, affecting such Borrower or any of its Significant their Subsidiaries before any court, governmental agency or arbitrator that arbitrator, which, if adversely determined, would materially affect the financial condition or operations of the Borrowers or any Subsidiary or which purports to affect the legality, validity or enforceability of this Amendment or any of the other Loan Documents, as amended.
(d) This Amendment, and each of the other Loan Documents, as amended, to which each Borrower is reasonably likely to have a Material Adverse Effectparty constitute the legal, valid and binding obligations of the respective Borrower enforceable against the corresponding Borrower in accordance with their respective terms, except as disclosed their enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors in general.
(e) The representations and warranties contained in the Disclosure DocumentsCredit Agreement are correct on and as of the date hereof as though made on and as of this date.
(f) The consolidated balance sheet No event has occurred and is continuing which constitutes an Event of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements Default or would constitute an Event of income and cash flows of such Borrower and its Consolidated Subsidiaries Default but for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowerrequirement that notice be given or time elapse or both.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower Each Loan Party and each of its Material Subsidiaries (i) is a corporation duly organizedorganized or formed, validly existing and and, to the extent such concept applies, in good standing under the laws of the jurisdiction in which it is incorporated of its incorporation or otherwise organizedformation, and each Significant Subsidiary of such Borrower (ii) is duly organized, validly existing qualified and in good standing under the laws of the as a foreign corporation or other entity in each other jurisdiction in which it is incorporated owns or otherwise organizedleases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Each Loan Party and each of its Subsidiaries has filed, has caused to be filed or has been included in all material federal tax returns and all other material tax returns required to be filed and has paid all taxes shown thereon to be due, together with applicable interest and penalties, except to the extent contested in good faith and by appropriate proceedings (in which case adequate reserves have been established therefor in accordance with GAAP).
(c) The execution, delivery and performance by such Borrower each Loan Party of this Agreement, each Loan Document to which it is or is to be a party and the consummation of the transactions contemplated herebyby the Loan Documents, are within such BorrowerLoan Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) contravene such BorrowerLoan Party’s certificate of incorporation or by-lawsconstitutional documents, (ii) law binding violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or affecting such Borrower or award, (iii) conflict with or result in the breach of, or constitute a default under, any contractual restriction contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Borrower any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its properties.
(c) This Agreement has been duly executed and delivered by Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such Borrower. This Agreement is the legallaw, valid and binding obligation rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Borrower enforceable against such Borrower in accordance with its termscontract, except as the enforceability thereof may be limited by bankruptcyloan agreement, insolvencyindenture, fraudulent conveyance mortgage, deed of trust, lease or other similar laws affecting instrument, the enforcement violation or breach of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject which would be reasonably likely to general principles of equity (regardless of whether such remedy is sought in have a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingMaterial Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by such Borrower any Loan Party of this Agreementany Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents, or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrowerauthorizations, each of approvals, actions, notices and filings which Governmental Approvals will have been obtained duly obtained, taken, given or made and will be are in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowereffect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, subject to bankruptcy, insolvency and similar laws of general application relating to creditors’ rights and to general principles of equity.
(f) There is no pending or threatened action, suit, investigation, litigation or proceedingproceeding affecting any Loan Party or any of its Subsidiaries, including, without limitation, including any Environmental Action, affecting pending or, to such Borrower or any of its Significant Subsidiaries Loan Party’s knowledge, threatened before any court, governmental agency or arbitrator that is (i) would be reasonably likely to have a Material Adverse EffectEffect or (ii) would reasonably be expected to affect the legality, except as disclosed in validity or enforceability of any Loan Document or the Disclosure transactions contemplated by the Loan Documents.
(fg) The consolidated Consolidated balance sheet of each Borrower the Parent and its Consolidated Subsidiaries as at December 31, 20072004, and the related consolidated Consolidated statements of income and of cash flows of such Borrower the Parent and its Consolidated Subsidiaries for the fiscal year Fiscal Year then ended, accompanied by an unqualified opinion of Deloitte & Touche PricewaterhouseCoopers LLP, an independent registered public accounting firmaccountants, copies of each of which have been furnished to each Lender, fairly present the consolidated Consolidated financial condition of such Borrower the Parent and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of such Borrower the Parent and its Consolidated Subsidiaries for the period Fiscal Year ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since GAAP applied on a consistent basis, and, as of the Effective Date, since December 31, 20072004, there has been no Material Adverse Change with respect to such BorrowerChange.
(gh) No written statement, information, report, financial statement, exhibit or schedule report furnished by or on behalf of such Borrower any Loan Party to the Administrative Agent, any Agent or any Lender or any LC Issuing Bank in connection with the negotiation and syndication of the Loan Documents or negotiation pursuant to the terms of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain the Loan Documents contained any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit omitted to state any a material fact necessary to make the statements thereinmade therein not misleading as at the date it was dated (or if not dated, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itso delivered).
(i) No accumulated funding deficiency Following application of the proceeds of each Advance hereunder, Margin Stock will constitute less than 25% of the value of those assets of any Borrower which are subject to any limitation on sale, pledge or other disposition hereunder.
(j) Neither any Loan Party nor any of its Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in Section 302 the Investment Company Act of ERISA and Section 412 1940, as amended. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the Internal Revenue Codeproceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(k) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(l) Except to the extent that could any and all events and conditions under clauses (i) through (v) below of this paragraph (l) in the aggregate are not reasonably be expected to have a Material Adverse Effect, whether ,
(i) Neither any Loan Party nor any ERISA Affiliate has incurred or not waived, exists is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(ii) With respect to each scheme or arrangement mandated by a government other than the United States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee benefit plan that is not subject to United States law maintained or contributed to by any Plan. Such Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV of ERISA Loan Party or with respect to which any Multiemployer Plan that could reasonably be expected to Subsidiary of any Loan Party may have liability under applicable local law (a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.”):
Appears in 1 contract
Samples: Credit Agreement (Ace LTD)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Each Borrower is a corporation and each of its Significant Subsidiaries (i) are Persons duly organized, validly existing and and, to the extent such concept is applicable in the jurisdiction of organization of such Borrower or such Subsidiary, in good standing under the laws of the jurisdictions of their respective organization, (ii) are duly qualified and, to the extent such concept is applicable in such jurisdiction, in good standing as foreign corporations (or the equivalent thereof) in each other jurisdiction in which it is incorporated they own or otherwise organizedlease property or in which the conduct of their respective businesses requires them to so qualify or be licensed, except where the failure to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and each Significant Subsidiary of such Borrower is duly organized, validly existing (iii) have all requisite power and in good standing under the laws of the jurisdiction in which it is incorporated authority to own or otherwise organizedlease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and its Notes, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate 's powers, have been duly authorized by all necessary action (including, without limitation, all necessary stockholders' action), and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-lawslaws (or similar organizational documents), (ii) law binding any law, statute, rule or affecting such Borrower regulation or any order, writ, judgment, injunction, decree, determination or award or (iii) any contractual restriction contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Borrower Borrower, any of its Subsidiaries or any of its propertiestheir properties or assets.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body Governmental Authority or any other third party is required for the due execution, delivery and performance by such any Borrower of this AgreementAgreement or any of its Notes, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account consummation of such Borrowerany of the transactions contemplated hereby, each of which Governmental Approvals will except as have been obtained or made and will be are in full force and effect on or prior effect.
(d) This Agreement has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by each Borrower intended to be a party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Borrower intended to be a party thereto, enforceable against such Borrower in accordance with their respective terms, except to the date extent that the enforceability thereof may be limited by the effect of any Extension of Credit applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or for the account affecting creditors' rights generally or by general principles of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any The most recently completed annual Financial Statements of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower Company and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firmSubsidiaries, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower the Company and its Consolidated Subsidiaries as at the date of such date Financial Statements and the consolidated results of the operations of such Borrower the Company and its Consolidated Subsidiaries for the period fiscal year of the Company ended on the date of such dateFinancial Statements, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to in effect at the time such BorrowerFinancial Statements were prepared.
(gf) No written statement, All information, reportexhibits and reports (other than financial statements, financial statementanalysts' reports, exhibit or schedule projections and assumptions) furnished by or on behalf of such each Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication negotiation of, or negotiation of pursuant to the terms of, this Agreement or included herein or delivered pursuant hereto contained, contains, or will do not contain any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit to state any a material fact necessary to make the statements thereincontained therein not misleading, in the light of the circumstances under which they were, are, or will be any such statements were made, not misleading.
(hg) Except as disclosed There is no action, suit, investigation, litigation or proceeding (including, without limitation, any Environmental Action) against or in any other way affecting any Borrower or any of its Subsidiaries or any of its respective properties or businesses pending or, to the Disclosure Documents, such Borrower and each Significant Subsidiary best knowledge of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rulesor any of its Subsidiaries, regulations and orders of threatened before any governmental authority applicable to it.
court, Governmental Authority or arbitrator that (i) No accumulated funding deficiency (as defined either individually or in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that aggregate, could reasonably be expected to have a Material Adverse EffectEffect or (ii) purports to adversely affect the legality, whether validity or not waived, exists with respect to enforceability of this Agreement or any Plan. Such Borrower has not incurredof the Notes or the consummation of the transactions contemplated hereby.
(h) None of the Borrowers is engaged in the business of extending credit for the purpose of purchasing or carrying "margin stock" (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and does not presently expect no proceeds of any Advance will be used to incur, purchase or carry any withdrawal liability under Title IV margin stock or to extend credit to others for the purpose of ERISA with respect to purchasing or carrying margin stock.
(i) Neither any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower and each nor any of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plansis an "investment company", if any. As used hereinor an "affiliated person" of, the term “Plan” shall mean or "promoter" or "principal underwriter" for, an “employee pension benefit plan” "investment company" (each as defined in Section 3 the Investment Company Act of ERISA) which is and has been established or maintained1940, or to which contributions are or have been made or should be made according to as amended). Neither the terms making of any Advances nor the application of the plan proceeds or the repayment or repurchase thereof by any Borrower Borrower, nor the consummation of any of the other transactions contemplated hereby, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(j) The Advances and all related obligations of each Borrower under this Agreement and its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as Notes rank pari passu with all other unsecured obligations of such term is defined in Section 4001(a)(3) Borrower that are not, by their terms, expressly subordinate to such other obligations of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclesuch Borrower.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents Effective as of the Effective Date and, other than the last sentence of Section 4.01(e), as of the date of each Borrowing, the Borrowers represent and warrants warrant as follows:
(a) Such Borrower MEMC is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedState of Delaware, and each Significant Subsidiary of such Borrower MEMC Pasadena, Inc. is corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedState of Delaware.
(b) The execution, delivery and performance by such each Borrower of this Agreement, and the consummation of the transactions contemplated hereby, Loan Documents are within such Borrower’s each Borrowers' corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation 's charters or by-laws, laws or (ii) any law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party Governmental Authority is required for the due execution, delivery and performance by such Borrower the Borrowers of this Agreementthe Loan Documents.
(d) This Agreement and the Security Agreement have been, except for such Governmental Approvals that may be required to be obtained and the Notes when delivered hereunder will have been, duly executed and delivered by such Borrower in connection with any Extension of Credit to or for the account of such BorrowerBorrowers. This Agreement and the Security Agreement are, and each of which Governmental Approvals the Notes when delivered hereunder will have been obtained be, legal, valid and will be binding obligations of the Borrowers enforceable against each of the Borrowers in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borroweraccordance with their respective terms.
(e) There The Pledge Agreement has been duly executed and delivered by MEMC. The Pledge Agreement is no pending or threatened actiona legal, suitvalid and binding obligation of MEMC, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of enforceable against MEMC in accordance with its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documentsterms.
(f) The consolidated Consolidated balance sheet sheets of each Borrower MEMC and its Consolidated Subsidiaries as at of December 31, 20072000 and June 30, 2001 and the related consolidated Consolidated statements of income and cash flows of such Borrower MEMC and its Consolidated Subsidiaries for the fiscal year and the six months then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lenderthe Lenders, fairly present the consolidated financial condition of such Borrower MEMC and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower MEMC and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently appliedGAAP. Since December 31June 30, 20072001, there has been no Material Adverse Change with respect Change, except as otherwise reflected in any written materials provided to such Borrowerthe Agent.
(g) No written statement, information, report, financial statement, exhibit There is no pending or schedule furnished by threatened action or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 proceeding affecting any Borrower or any of its ERISA AffiliatesSubsidiaries before any court, governmental agency or arbitrator, that (i) may materially adversely affect the financial condition or operations of such Borrower or any of its Subsidiaries or (ii) purports to affect the legality, validity or enforceability of the Loan Documents or the consummation of the transactions contemplated hereby.
(h) Neither of the Borrowers is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(i) The provisions of the Security Agreement are effective to create in favor of the Agent for the benefit of the Secured Creditors a legal, valid and enforceable security interest in all right, title and interest of the Borrowers in the Security Agreement Collateral described therein, and the Agent, for the benefit of the Secured Creditors, has a first lien on, and security interest in, all right, title and interest of the Borrowers in all of the Security Agreement Collateral described therein, subject to no other Liens other than Permitted Liens. The term “Multiemployer Plan” shall mean filings on Form UCC-1 made pursuant to the Security Agreement, will create, as may be perfected by such filing and recordation, a perfected security interest in the Security Agreement Collateral.
(j) The provisions of the Pledge Agreement are effective to create in favor of the Agent for the benefit of the Secured Creditors a legal, valid and enforceable security interest in all right, title and interest of MEMC in the Pledge Agreement Collateral described therein, and the Agent, for the benefit of the Secured Creditors, has a first lien on, and security interest in, all right, title and interest of the Borrowers in all of the Pledge Agreement Collateral, subject to no other Liens other than Permitted Liens.
(k) Neither of the Borrowers is an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(l) All information provided by either of the Borrowers, on behalf of such Borrower or the other Borrower, to the Agent or any Plan which Lender in connection with the transactions contemplated hereby is a “multiemployer plan” (as such term is defined true and correct in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleall material respects.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants with respect to itself as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own its property and assets and to carry on its business as now conducted and is qualified to do business in which it every jurisdiction where, because of the nature of its business or property, such qualification is incorporated required, except where the failure so to qualify would not have a material adverse effect on the financial condition, properties, prospects or otherwise organized, and each Significant Subsidiary operations of such Borrower. Such Borrower is duly organizedhas the corporate power to execute, validly existing deliver and in good standing perform its obligations under the laws of the jurisdiction in which it is incorporated or otherwise organizedLoan Documents, to borrow hereunder and to execute and deliver its respective Notes.
(b) The execution, delivery and performance of the Loan Documents by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate or other similar action, and do not and will not contravene (i) such Borrower’s certificate of incorporation 's, charter or by-laws, as the case may be, or any law or legal restriction or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement Except as disclosed in such Borrower's Disclosure Documents, such Borrower is not in violation of any law or in default with respect to any judgment, writ, injunction, decree, rule or regulation (including any of the foregoing relating to environmental laws and regulations) of any court or governmental agency or instrumentality where such violation or default would reasonably be expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower.
(d) There has been duly executed and delivered by no material adverse development with respect to (i) such Borrower's proceedings to divest its generating assets, or (ii) any orders, plans or authorizations for recovery of its stranded assets, where any such development results, or would reasonably be expected to result, in a material adverse effect on the financial condition, properties, prospects or operations of such Borrower, other than as described in the Disclosure Documents.
(e) All Governmental Approvals referred to in clauses (i) and (ii) of the definition of "Governmental Approvals" have been duly obtained or made, and all applicable periods of time for review, rehearing or appeal with respect thereto have expired, except as described below. This Agreement If the period for appeal of the order of the Securities and Exchange Commission approving the transactions contemplated hereby has not expired, the filing of an appeal of such order will not affect the validity of said transactions, unless such order has been otherwise stayed or any of the parties hereto has actual knowledge that any of such transactions constitutes a violation of the Public Utility Holding Company Act of 1935 or any rule or regulation thereunder. No such stay exists and no Borrower has any reason to believe that any of such transactions constitutes any such violation. Such Borrower has obtained or made all Governmental Approvals referred to in clause (iii) of the definition of "Governmental Approvals", except (A) those which are not yet required but which are obtainable in the ordinary course of business as and when required, (B) those the absence of which would not materially adversely affect the financial condition, properties, prospects or operations of such Borrower and (C) those which such Borrower is diligently attempting in good faith to obtain, renew or extend, or the requirement for which such Borrower is contesting in good faith by appropriate proceedings or by other appropriate means, in each case described in the foregoing clause (C), except as is disclosed in such Borrower's Disclosure Documents, such attempt or contest, and any delay resulting therefrom, is not reasonably expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower or to magnify to any significant degree any such material adverse effect that would reasonably be expected to result from the absence of such Governmental Approval.
(f) The Loan Documents to which such Borrower is a party are legal, valid and binding obligation obligations of such Borrower enforceable against such Borrower in accordance with its their respective terms; subject to the qualification, except as however, that the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or enforcement of the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general application affecting rights and remedies of creditors and the enforcement application of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought considered in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing).
(dg) 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 such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account The Financial Statements of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished provided to the Administrative Agent and each Lenderof the Lenders, fairly present in all material respects the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower (in the case of CL&P, on a consolidated basis) at and its Consolidated Subsidiaries for the period ended on such datethe dates thereof, all and have been prepared in accordance with generally accepted accounting principles consistently applied. Since December 31June 30, 20071999, there has been no Material Adverse Change material adverse change in the consolidated (or in the case of WMECO, unconsolidated) financial condition, operations, properties or prospects of such Borrower and its Subsidiaries, if any, taken as a whole, except as disclosed in such Borrower's Disclosure Documents.
(h) There is no pending or known threatened action or proceeding (including, without limitation, any action or proceeding relating to any environmental protection laws or regulations) affecting such Borrower or its properties, before any court, governmental agency or arbitrator (i) which affects or purports to affect the legality, validity or enforceability of any Loan Document or (ii) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, would materially adversely affect the financial condition, properties, prospects or operations of such Borrower, except, for purposes of this clause (ii) only, such as is described in such Borrower's Disclosure Documents or in Schedule II hereto.
(i) No ERISA Plan Termination Event has occurred nor is reasonably expected to occur with respect to any ERISA Plan which would materially adversely affect the financial condition, properties, prospects or operations of such Borrower taken as a whole, except as disclosed to the Lenders and consented to by the Majority Lenders in writing. Since the date of the most recent Schedule B (Actuarial Information) to the annual report of each such ERISA Plan (Form 5500 Series), there has been no material adverse change in the funding status of the ERISA Plans referred to therein, and no "prohibited transaction" has occurred with respect thereto that, singly or in the aggregate with all other "prohibited transactions" and after giving effect to all likely consequences thereof, would be reasonably expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower. Neither such Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any ERISA Multiemployer Plan, except as disclosed to and consented by the Majority Lenders in writing.
(gj) Such Borrower has good and marketable title (or, in the case of personal property, valid title) or valid leasehold interests in its assets, except for (i) minor defects in title that do not materially interfere with the ability of such Borrower to conduct its business as now conducted and (ii) other defects that, either individually or in the aggregate, do not materially adversely affect the financial condition, properties, prospects or operations of such Borrower. All such assets and properties are free and clear of any Lien, other than Liens permitted under Section 7.02(a) hereof.
(k) All outstanding shares of capital stock having ordinary voting power for the election of directors of such Borrower have been validly issued, are fully paid and nonassessable and are owned beneficially by NU, free and clear of any Lien. NU is a "holding company" (as defined in the Public Utility Holding Company Act of 1935, as amended).
(l) Such Borrower has filed all tax returns (Federal, state and local) required to be filed and paid taxes shown thereon to be due, including interest and penalties, or, to the extent such Borrower is contesting in good faith an assertion of liability based on such returns, has provided adequate reserves in accordance with generally accepted accounting principles for payment thereof.
(m) No exhibit, schedule, report or other written statement, information, report, financial statement, exhibit or schedule furnished information provided by or on behalf of such Borrower or its agents to the Administrative Agent, any Lender Agent or any LC Issuing Bank the Lenders in connection with the syndication or negotiation negotiation, execution and closing of this Agreement or included herein or delivered pursuant hereto containedthe Loan Documents (including, containswithout limitation, or will contain the Financial Statements and the Information Memorandum (but excluding the projections contained in the Information Memorandum)) knowingly contained when made any material misstatement of fact or intentionally omitted, omits, or will omit knowingly omitted to state any material fact necessary to make the statements therein, contained therein not misleading in the light of the circumstances under which they werewere made. Except as has been disclosed to the Administrative Agent and each Lender, arethe projections delivered concurrently with the Information Memorandum were prepared in good faith on the basis of assumptions reasonable as of the date of the Information Memorandum, it being understood that such projections do not constitute a warranty or will binding assurance of future performance. Except as has been disclosed to the Administrative Agent and each Lender, nothing has come to the attention of the responsible officers of such Borrower that would indicate that any of such assumptions, to the extent material to such projections, has ceased to be made, not misleadingreasonable in light of subsequent developments or events.
(hn) Except as disclosed All proceeds of the Advances shall be used (i) for the general corporate purposes of such Borrower, including to provide liquidity support for such Borrower's commercial paper, and (ii) to provide liquidity to the NU System Money Pool. No proceeds of any Advance will be used in violation of, or in any manner that would result in a violation by any party hereto of, Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System or any successor regulations. Such Borrower (A) is not an "investment company" within the meaning ascribed to that term in the Disclosure Documents, such Borrower Investment Company Act of 1940 and each Significant Subsidiary (B) is not engaged in the business of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders extending credit for the purpose of any governmental authority applicable to itbuying or carrying margin stock.
(io) No accumulated funding deficiency Such Borrower has no Subsidiaries, other than those listed on Schedule III hereto, each of which is either inactive or a special purpose entity used solely in connection with the financing activities of such Borrower, and none of which, either individually or collectively with all other Subsidiaries of such Borrower, represents 10% or more of such Borrower's consolidated assets or 10% or more of such Borrower's consolidated net income (or loss) on any date or for any relevant period of determination.
(p) Such Borrower has obtained the insurance specified in Section 7.01(c) hereof and the same is in full force and effect.
(q) Such Borrower has substantially completed reprogramming and/or remediation required as a result of the potential Year 2000 Issue to permit the proper functioning in all material respects of its computer software, hardware and firmware systems and equipment containing computer chips and the proper processing in all material respects of data, and the testing of such reprogramming or remediation (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plancase may be). Such Borrower has completed review of the reasonably foreseeable consequences of the potential Year 2000 Issue to such Borrower (including, without limitation, reprogramming errors and the failure of systems or equipment supplied by others) and such consequences are not incurredreasonably expected to result in an Event of Default, an Unmatured Default or a material adverse effect on the financial condition, properties, prospects or operations of such Borrower.
(r) Each of the Mortgages creates a valid and enforceable mortgage on the interest of the Borrower party thereto in the "Mortgaged Premises" described therein in favor of the Collateral Agent for the benefit of the Lenders to secure the obligations of such Borrower to the Lenders under the Loan Documents, and does not presently expect to incurupon the recording or filing of such Mortgage in the Office of the Town Clerk of Waterford, any withdrawal liability under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to Connecticut, the Collateral Agent shall have a Material Adverse Effect. Such Borrower perfected mortgage in the "Mortgaged Premises" described therein, subject to no other Liens except as described in such Mortgage and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” (as defined in Liens permitted under Section 3 of ERISA7.02(a) 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclehereof.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Parent makes each of the following representations and warrants as followswarranties, and, to the extent any such representation or warranty relates to EOIC or any of its Subsidiaries, EOIC also makes such representation or warranty:
(a) Such Borrower The Parent is a corporation duly organized, validly formed and validly existing and in good standing under the laws of the jurisdiction in which it State of Delaware. EOIC is incorporated or otherwise organized, an exempted company validly formed and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the Cayman Islands. Each Material Subsidiary is duly organized or validly formed, validly existing and (if applicable) in good standing in each case under the laws of its jurisdiction of incorporation or formation. Each Borrower has, and each Material Subsidiary has, all requisite powers and all material governmental licenses, authorizations, consents and approvals required in which it is incorporated or otherwise organizedeach case to carry on its business as now conducted.
(b) The execution, delivery and performance by such each Borrower of this Agreement, the Notes and the consummation of the transactions contemplated hereby, each other Loan Document to which it is or will be a party are within such Borrower’s corporate powers, have been duly authorized by all necessary actionaction of such Borrower, require, in respect of such Borrower, no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene contravene, or constitute a default under, (i) any provision of law or regulation (including Regulation X issued by the Federal Reserve Board) applicable to such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or Regulation U issued by the Federal Reserve Board, (iii) its Bylaws, Articles of Incorporation, or other organizational or governing documents, or (iv) any contractual restriction judgment, injunction, order, decree or agreement binding upon such Borrower, or result in the creation or imposition of any Lien (other than a Lien created in connection with this Agreement) on or affecting any asset of such Borrower or any of its propertiesRestricted Subsidiaries.
(c) This Agreement has been duly and each Note are, and each other Loan Document to which a Borrower is or will be a party, when executed and delivered by such Borrower. This in accordance with this Agreement is the will be, legal, valid and binding obligation obligations of such Borrower enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to by general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingequity.
(d) No authorization In each case, subject to Section 2.19(f):
(i) The balance sheet of the Parent as at December 31, 2004, duly certified by the chief executive officer or approval or other action bythe chief financial officer of the Parent, copies of which have been furnished to each Bank, fairly presents in all material respects the financial condition of the Parent as at such date and no notice to or filing withsuch balance sheet was prepared in accordance with GAAP, any governmental authority or regulatory body or any other third party is required except as specifically noted therein.
(ii) The unaudited balance sheet of the Parent as of March 31, 2005 and the related unaudited statements of income, cash flows and changes in stockholders’ equity accounts for the due executionperiod from the creation of the Parent through March 31, delivery 2005, certified by a financial or accounting officer of the Parent, copies of which have been delivered to each Bank, fairly present in all material respects, in conformity with GAAP except as otherwise expressly noted therein, the financial position of the Parent as of such date and performance by its results of operations and changes in financial position for such Borrower period, subject to changes resulting from audit and normal year-end adjustments.
(iii) Since December 31, 2004 through the date of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have there has been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerno Material Adverse Change.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, includingor investigation pending against any Borrower or any Subsidiary of a Borrower, without limitation, or to the knowledge of any Environmental Action, affecting Borrower threatened against such Borrower or any of its Significant Subsidiaries Subsidiaries, before any courtcourt or arbitrator or any governmental body, governmental agency or arbitrator that official in which there is reasonably likely to a reasonable possibility of an adverse decision which could have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished No Termination Event has occurred or is reasonably expected to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change occur with respect to such Borrowerany Plan for which an Insufficiency exists that could reasonably be expected to cause a Material Adverse Effect. Neither any Borrower nor any ERISA Affiliate has received any notification (or has knowledge of any reason to expect) that any Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, for which a Withdrawal Liability exists that could reasonably be expected to cause a Material Adverse Effect.
(g) No written statement, information, report, financial statement, exhibit The Parent and the Material Subsidiaries have filed or schedule furnished by or on behalf of such Borrower caused to be filed all United States federal income tax returns and all other material domestic tax returns which to the Administrative Agentknowledge of the Parent are required to be filed by them and have paid or provided for the payment, before the same become delinquent, of all taxes due pursuant to such returns or pursuant to any Lender assessment received by a Borrower or any LC Issuing Bank Material Subsidiary, other than those taxes contested in connection with good faith by appropriate proceedings. EOIC and the syndication Material Subsidiaries have filed or negotiation caused to be filed all material tax returns (or their equivalent) which to the knowledge of this Agreement EOIC or included herein the Parent are required to be filed under Cayman Islands law and have paid or delivered provided for the payment, before the same become delinquent, of all taxes due pursuant hereto containedto such returns (or their equivalent) or pursuant to any assessment received by EOIC, containsthe Parent, or will contain any material misstatement Material Subsidiary under Cayman Islands law, other than those taxes contested in good faith by appropriate proceedings. The charges, accruals and reserves on the books of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements thereinParent and its Material Subsidiaries in respect of taxes are, in the light opinion of the circumstances under which they wereParent, are, or will be made, not misleadingadequate to the extent required by GAAP.
(h) Except Neither the Parent nor any of its Subsidiaries is an “investment company” within the meaning of the Investment Company Act of 1940, as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itamended.
(i) No accumulated funding deficiency Neither the Parent nor any of its Subsidiaries is subject to regulation as a “holding company” or a “subsidiary company” of a “holding company”, in each case as such terms are defined in the Public Utility Holding Company Act of 1935, as amended.
(j) Following application of the proceeds of each Advance, no more than 25% of the value of the Reg U Limited Assets of either Borrower will consist of margin stock (as defined in Section 302 of ERISA Regulation U), and Section 412 no more than 25% of the Internal Revenue Codevalue of the Reg U Limited Assets of the Parent and its Subsidiaries on a consolidated basis will consist of margin stock (as defined in Regulation U).
(k) Neither the Parent nor any of its Subsidiaries is in default under or with respect to, nor has any event or circumstance occurred which, but for the passage of time or the giving of notice or both, would constitute a default by the Parent or any of its Subsidiaries under or with respect to, any contract, agreement, lease or other instrument to which the Parent or such Subsidiary is a party and which could reasonably be expected to cause a Material Adverse Effect, and no Default or Event of Default exists.
(l) The Parent and each of the Material Subsidiaries have been and are in compliance in all respects with all applicable Environmental Laws, except to the extent that failure to comply with such Environmental Laws could not reasonably be expected to have a Material Adverse Effect. There is (1) no outstanding allegation by government officials or other third parties that the Parent or any of its Subsidiaries or any of their respective Properties is now, whether or not waivedat any time prior to the date hereof was, exists with respect in violation of any applicable Environmental Law, (2) no administrative or judicial proceeding pending against the Parent or any of its Subsidiaries or against any of their respective Properties pursuant to any Plan. Such Borrower has not incurredEnvironmental Law, and does not presently expect to incur(3) no claim outstanding against the Parent or any of its Subsidiaries or against any of their respective Properties, any withdrawal liability under Title IV of ERISA with respect businesses or operations which was asserted pursuant to any Multiemployer Plan that Environmental Law, that, in the case of all matters described in clauses (1), (2), or (3) above in the aggregate, could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established There are no facts or maintained, conditions or to which contributions are or have been made or should be made according circumstances known to the terms of Parent that the plan by Parent reasonably believes could form the basis for any Borrower action, lawsuit, claim or proceeding involving the Parent or any of its ERISA Affiliates. Subsidiaries or their respective past or present Properties, businesses or operations relating to the Environment or Environmental matters, including any action, lawsuit, claim or proceeding arising from past or present practices or operations asserted under any Environmental Law, that in the aggregate could reasonably be expected to have a Material Adverse Effect.
(m) The term “Multiemployer Plan” shall mean Parent and its Material Subsidiaries (i) have good, valid and indefeasible title to their respective property and to all property reflected by the balance sheet referred to in Section 4.01(d)(i) as being owned by the Parent, in each case free and clear of all Liens except Permitted Liens and (ii) maintain insurance in compliance with Section 5.01(d).
(n) Neither the Parent nor any Plan which of its Subsidiaries is a “multiemployer plan” party to any agreement or instrument or subject to any restriction or any court order, writ, injunction or decree which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(o) No statement, information, exhibit, representation, warranty or report contained in any Loan Document or furnished to any of the Administrative Agent, the Syndication Agent, the Issuing Bank or any Bank in connection with or pursuant to any Loan Document or the preparation or negotiation of any Loan Document contains any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein not materially misleading when taken as a whole in light of the time and the circumstances under which such term statements were made.
(p) Neither of the Borrowers nor any Material Subsidiary (i) is defined in Section 4001(a)(3violation of any Governmental Requirement or (ii) of ERISA). The term “Foreign Plan” shall mean has failed to obtain any pensionlicense, profit-sharingpermit, deferred compensation, franchise or other employee benefit plangovernmental authorization necessary to the ownership of any of its respective properties or the conduct of its respective businesses, program except such violations and failures which could not reasonably be expected to have in the aggregate (in the event that such violation or arrangement maintained failure were asserted by any entity subsidiary whichPerson through appropriate action) a Material Adverse Effect.
(q) The Borrowers and each of the Material Subsidiaries are qualified to own and operate the Rigs under the laws of the United States, under applicable local foreign lawthe Bahamas, Liberia, and Panama, as may be applicable.
(r) Each Rig is required classified in the highest class available for rigs or vessels of its age and type with the American Bureau of Shipping, Inc. or another internationally recognized classification society reasonably acceptable to be funded through a trust the Administrative Agent, free of any material outstanding requirements or other funding vehiclerecommendations.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) : Such Borrower and each Subsidiary Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the its jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) organization. The execution, delivery and performance by such Borrower of this AgreementAmendment and the Loan Documents, as amended hereby, and the consummation by each Subsidiary Guarantor of the transactions contemplated herebyConsent and Confirmation attached hereto, are in each case within such Borrower’s corporate Person's powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought result in a proceeding in equity default under or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(d) contravene any such Person's Organic Documents. 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 (other than those that have been duly obtained or any other third party made and which are in full force and effect) is required for the due execution, delivery and or performance by such Borrower of this AgreementAmendment or any of the Loan Documents, except for such Governmental Approvals that may be required as amended hereby, to which it is or is to be obtained a party, or by such Borrower in connection with any Extension each Subsidiary Guarantor of Credit to or for the account of Consent and Confirmation attached hereto. This Amendment has been duly executed and delivered by such Borrower, and the Consent and Confirmation attached hereto has been duly executed and delivered by each Subsidiary Guarantor. This Amendment and each of the other Loan Documents, as amended hereby, to which Governmental Approvals will have been obtained such Borrower is a party, and will be in full force the Consent and effect on or prior to the date Confirmation attached hereto, are legal, valid and binding obligations of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any courtsuch Subsidiary Guarantor, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effectas applicable, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of enforceable against such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all entity in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
their respective terms (g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements thereinexcept, in the light of the circumstances under which they wereany case, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) enforceability may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and by general principles of ERISAequity). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated State of New York or otherwise organizedDelaware, as the case may be, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing qualified to do business under the laws of the jurisdiction such other jurisdictions in which it is incorporated or otherwise organizedits failure to so qualify could have a Material Adverse Effect.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, Amendment (i) are within such Borrower’s corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (iA) such Borrower’s certificate Governing Documents, (B) any Requirement of incorporation Law or by-laws, (C) any Material Contract and (ii) law binding will not result in or affecting require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legalNo authorization, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 Governmental Authority or regulatory body or any other third party Person is required for the due execution, delivery and performance by such Borrower of this AgreementAmendment.
(d) This Amendment and the Loan Agreement as amended hereby constitute the legal, except for valid and binding obligations of such Governmental Approvals that may be required to be obtained by Borrower enforceable against such Borrower in connection accordance with any Extension their respective terms except as enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There Except as specified in Schedule 6.1(r) to the Loan Agreement or as otherwise disclosed through Del Global’s filings with the Securities and Exchange Commission, there is no pending or or, to the best of such Borrower’s knowledge after due inquiry, threatened actionlitigation, suitcontested claim, investigation, litigation arbitration or proceeding, including, without limitation, any Environmental Action, affecting governmental proceeding by or against such Borrower or any of its Significant Subsidiaries before any court, governmental agency Governmental Authority or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed which individually or in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that aggregate could reasonably be expected to have a Material Adverse EffectEffect or which purports to affect the legality, whether validity or not waived, exists with respect to any Plan. Such Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV enforceability of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and this Amendment or the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” Loan Agreement as amended hereby.
(f) Except as defined specified in Section 3 of ERISA) which 1 hereof, no Default has occurred and 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecontinuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Del Global Technologies Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws series of the jurisdiction in Trust which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has all requisite power (corporate, partnership or other), and has all material governmental licenses, authorizations, consents and approvals necessary for such Borrower to own its assets and for such Borrower to carry on its business as now conducted and as proposed to be conducted and (iii) is qualified to do business and is in good standing in all jurisdictions in which the nature of the business conducted by it is incorporated makes such qualification necessary and where failure so to qualify could (either individually or otherwise organizedin the aggregate) have a Material Adverse Effect.
(b) The execution, delivery and performance by the Trust on behalf of such Borrower of this Agreement, and the consummation of the transactions contemplated herebyhereby and thereby, are within such Borrowerthe Trust’s corporate powerspowers (corporate, partnership or other) and have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate action on the part of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrowerthe Trust. This Agreement is the a legal, valid and binding obligation of the Trust on behalf of such Borrower enforceable against such Borrower in accordance with its terms, except as to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws of general applicability affecting the enforcement of creditors’ rights in general, and except as the availability application of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy enforceability is sought considered in a proceeding in equity or at law).
(c) Neither the execution, delivery and subject performance of this Agreement by the Trust on behalf of such Borrower nor the consummation of the transactions contemplated hereby will (i) contravene the Trust’s certificate of incorporation, by-laws, partnership agreement, declaration of trust or other constitutive document, as the case may be, (ii) violate or conflict with any material judgment, decree, order, determination or award or any law, rule, regulation or statute (including, without limitation, the Investment Company Act and any applicable Environmental Law), (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 such Borrower, or (iv) result in or require the creation or imposition of any Lien upon or with respect to requirements any of reasonableness, good faith and fair dealingthe properties of such Borrower.
(d) No authorization or approval consent, approval, permit or other action bylicense of, and no notice to or filing with, any governmental or public body or authority or regulatory body or any other third party is required to authorize, or for the due execution, delivery and performance by the Trust on behalf of such Borrower of of, this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for consummation of the account of such Borrowertransactions contemplated hereby other than any authorization, each of which Governmental Approvals will have been obtained and will be consent or approval in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowereffect.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, No portion of any Environmental Action, affecting Advance under this Agreement shall be used by such Borrower in violation of Regulation U, Regulation T, or Regulation X of the Board of Governors of the Federal Reserve System or any other Regulation of its Significant Subsidiaries before any courtsuch Board or in violation of the Securities Exchange Act of 1934, governmental agency as amended, in each case as in effect on the date or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documentsdates of such Advance and such use of proceeds.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule report furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank Lenders in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain contained any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit omitted to state any a material fact necessary to make the statements thereinmade therein taken as a whole, in the light of the circumstances under and the time at which they were, are, or will be were made, not misleading. Since the date of such Borrower’s Prospectus, there has not been any change that would require such Borrower to supplement or amend its Prospectus, except for any change relating to a supplement or amendment which has previously been delivered to the Lenders.
(g) There is no pending or threatened investigation, litigation or proceeding to which such Borrower is a party, or by which such Borrower may be bound, before any court, governmental agency or arbitrator which (i) would individually or in the aggregate be likely to have a Material Adverse Effect if determined in a manner adverse to such Borrower or (ii) purports to affect the legality, validity or enforceability of this Agreement or the transactions contemplated hereby.
(h) Except Such Borrower does not have an ERISA Affiliate, nor has such Borrower had any ERISA Affiliate at any time. Such Borrower does not maintain, contribute to or participate in, nor has such Borrower at any time maintained, contributed to or participated in, any Plan or Multiemployer Plan.
(i) Such Borrower has filed, has caused to be filed or has been included in all tax returns (federal, state, local and foreign) required to be filed and has paid (or has accrued any taxes shown that are not due with the filing of such returns) all taxes shown thereon to be due, together with applicable interest and penalties, except in any case where the failure to file any such return or pay any such tax is not in any respect material to such Borrower. Such Borrower either (i) is not subject to any income tax or tax on capital imposed under the laws of any jurisdiction or (ii) intends to satisfy all requirements necessary to be relieved of any such tax by distributing its income (including capital gains) to its shareholders or holders of beneficial interests.
(j) The Trust is registered with the Commission under the Investment Company Act as disclosed in the Disclosure Documentsan open-end management investment company, such Borrower is duly registered under the Investment Company Act as a series of an open-end management investment company and each Significant Subsidiary no order of suspension or revocation of any such registration has been issued or proceedings therefor initiated or threatened by the Commission. Such Borrower is in material compliance with all laws investment objectives, policies and restrictions set forth in its Prospectus and applicable to it. Mirae Asset Global Investments (including ERISA USA) LLC is the investment adviser to such Borrower and Environmental Lawsis duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended. Any material deficiency of such Borrower identified during an inspection by the Commission has been or will be (within a reasonable period of time) rulessatisfactorily resolved.
(k) Such Borrower has furnished to the Lenders copies of the statement of assets and liabilities of such Borrower, and a description of the portfolio of investments of such Borrower and related statements of operation and changes in net assets (i) as of and for the fiscal year most recently ended and with respect to which financial statements are available with respect to such Borrower, reported on by independent public accountants and (ii) as of and for the semi-annual fiscal period ended subsequent to the date of the latest financial statements referred to in subsection (i) above and with respect to which such financial statements are available with respect to such Borrower. Such financial statements fairly present the financial condition of such Borrower as of the respective dates and for such periods specified in such financial statements, all in accordance with GAAP consistently applied. There has been no material adverse change in the business, assets, operations or financial condition of such Borrower since the date of the most recently audited financial statements of such Borrower referred to in this Section 4.01(k).
(l) As of the date hereof, such Borrower does not have any Indebtedness other than current liabilities consisting of expenses payable and payables for securities purchased and Indebtedness permitted under Section 5.02(b). Except as set forth on Schedule 4.01(l), there are no Liens on any Property of such Borrower other than Liens permitted under Section 5.02(a).
(m) Such Borrower is in compliance with all laws, regulations and orders of any governmental authority Governmental Authority applicable to it.
(i) No accumulated funding deficiency (as defined it or its Property and all indentures, agreements and other instruments binding on it or its Property, except where the failure to do so, individually or in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that aggregate, could not reasonably be expected to have result in a Material Adverse Effect, whether or not waived, exists with respect to any Plan. .
(n) Such Borrower has not incurredimplemented and maintains in effect policies and procedures designed to ensure compliance by such Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and does not presently expect such Borrower, its Subsidiaries and their respective officers and employees and to incurthe knowledge of such Borrower its directors and agents, any withdrawal liability under Title IV of ERISA are in compliance with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower Anti-Corruption Laws and each of its ERISA Affiliates have complied applicable Sanctions in all material respects respects. None of (i) such Borrower, any Subsidiary or, to the knowledge of such Borrower or such Subsidiary, any of their respective directors, officers or employees, or (ii) to the knowledge of such Borrower, any agent of such Borrower or any Subsidiary that will act in any capacity in connection with ERISA and or benefit from the Internal Revenue Code. credit facility established hereby, (A) is a Sanctioned Person or are the subject or target of any Sanctions or (B) has taken any action, directly or indirectly, that would result in a violation by such Persons of any Anti-Corruption Laws.
(o) Such 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” shall mean has no subadvisor that is an “employee pension benefit planaffiliate” (within the meaning of Section 23A of the Federal Reserve Act, as amended) of, or an “affiliated person” (as defined in Section 3 of ERISA2(a)(3) 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 Investment Company Act) of, any Lender.
(p) Such Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclenot an Affected Financial Institution.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower Borrower, with respect to itself and its Subsidiaries only, represents and warrants warrants, on the date hereof, on the date of each Revolving Credit Borrowing or issuance or increase in the amount of any Letter of Credit and each Added L/C Effective Date and (in the case of Section 4.1(o) only) on each Revolving Credit Facility Increase Effective Date and each Letter of Credit Facility Increase Effective Date, as follows:
(a) Such Each Borrower is a corporation duly organizedorganized or validly formed, validly existing and (if applicable) in good standing under the laws of the jurisdiction State of Delaware and has all corporate, limited partnership or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in which it is incorporated all material respects, except where failure to be in good standing or otherwise organizedto have those licenses, authorizations, certificates, consents and each Significant approvals could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower. Each Material Subsidiary of such each Borrower is duly organizedorganized or validly formed, validly existing and (if applicable) in good standing under the laws of its jurisdiction of incorporation or formation, except where the jurisdiction failure to be so organized or formed, existing and in good standing could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower. Each Material Subsidiary of a Borrower has all corporate, limited partnership or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals the failure to have which it is incorporated or otherwise organizedcould not reasonably be expected to have a Material Adverse Effect in respect of such Borrower.
(b) The execution, delivery and performance by such Borrower each of this Agreement, the Borrowers and the other Credit Parties of the Credit Documents to which it is shown as being a party and the consummation of the transactions contemplated hereby, thereby are within such Borrower’s corporate 's or such other Credit Party's, as the case may be, corporate, limited partnership or limited liability company powers, have been duly authorized by all necessary corporate, limited partnership or limited liability company action, and do not contravene (i) any Borrower's or such Borrower’s certificate of incorporation or other Credit Party's, as the case may be, charter, by-laws, laws or formation agreement or (ii) law binding or affecting such Borrower or (iii) any contractual restriction under any material agreement binding on or affecting such any Borrower or other Credit Party and will not result in or require the creation or imposition of any of its propertiesLien prohibited by this Agreement.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(d) No material 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 such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date Party of any Extension Credit Document to which it is a party, or the consummation of Credit to or for the account of such Borrowertransactions contemplated thereby.
(ed) There Each Credit Document has been duly executed and delivered by each appropriate Credit Party, and is no pending or threatened actionthe legal, suitvalid and binding obligation of each such Credit Party, investigationenforceable against each such Credit Party, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of in accordance with its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effectterms, except as disclosed such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by general principles of equity, and except that the representations in this sentence in respect of the Disclosure DocumentsPledge and the Pipeline Holdco Guaranty are not made after the Collateral Release Date.
(fi) The consolidated Consolidated balance sheet of each Borrower TWC and its Consolidated Subsidiaries as at December 31, 20072004, and the related consolidated Consolidated statements of income and cash flows of such Borrower TWC and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each LenderBank, and the unaudited Consolidated balance sheet of TWC and its Subsidiaries as at March 31, 2005, and the related unaudited Consolidated statements of income and cash flows of TWC and its Subsidiaries for the three months then ended, duly certified by an authorized financial officer of TWC, copies of which have been furnished to each Bank, fairly present in all material respects (in the consolidated case of such balance sheet as at March 31, 2005, and such statements of income and cash flows for the three months then ended, subject to year-end audit adjustments and the lack of footnotes) the Consolidated financial condition of such Borrower TWC and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of such Borrower TWC and its Consolidated Subsidiaries for the period year and three month period, respectively, ended on such datedates, all in accordance with generally accepted accounting principles consistently appliedGAAP. Since As of the date hereof only, from December 31, 20072004 to the date of this Agreement, there has been no material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of TWC and its Subsidiaries (other than Non-Recourse Subsidiaries and International Subsidiaries), taken as a whole.
(ii) The Consolidated balance sheet of NWP and its Subsidiaries as at December 31, 2004, and the related Consolidated statements of income and cash flows of NWP and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, and the unaudited Consolidated balance sheet of NWP and its Subsidiaries as at March 31, 2005, and the related unaudited Consolidated statements of income and cash flows of NWP and its Subsidiaries for the three months then ended, duly certified by an authorized financial officer of NWP, copies of which have been furnished to each Bank, fairly present in all material respects (in the case of such balance sheet as at March 31, 2005, and such statements of income and cash flows for the three months then ended, subject to year-end audit adjustments and the lack of footnotes) the Consolidated financial condition of NWP and its Subsidiaries as at such dates and the Consolidated results of operations of NWP and its Subsidiaries for the year and three month period, respectively, ended on such dates, all in accordance with GAAP. As of the date hereof only, from December 31, 2004 to the date of this Agreement, there has been no material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of NWP and its Subsidiaries (other than Non-Recourse Subsidiaries and International Subsidiaries), taken as a whole.
(iii) The Consolidated balance sheet of TGPL and its Subsidiaries as at December 31, 2004, and the related Consolidated statements of income and cash flows of TGPL and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, and the unaudited Consolidated balance sheet of TGPL and its Subsidiaries as at March 31, 2005, and the related unaudited Consolidated statements of income and cash flows of TGPL and its Subsidiaries for the three months then ended, duly certified by an authorized financial officer of TGPL, copies of which have been furnished to each Bank, fairly present in all material respects (in the case of such balance sheet as at March 31, 2005, and such statements of income and cash flows for the three months then ended, subject to year-end audit adjustments and the lack of footnotes) the Consolidated financial condition of TGPL and its Subsidiaries as at such dates and the Consolidated results of operations of TGPL and its Subsidiaries for the year and three month period, respectively, ended on such dates, all in accordance with GAAP. As of the date hereof only, from December 31, 2004 to the date of this Agreement, there has been no material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of TGPL and its Subsidiaries (other than Non-Recourse Subsidiaries and International Subsidiaries), taken as a whole.
(f) There is, as to each Borrower, no pending or, to the knowledge of such Borrower as of the date hereof, threatened action or proceeding affecting such Borrower or any Material Subsidiary of such Borrower before any court, governmental agency or arbitrator, (i) which could reasonably be expected to have a Material Adverse Change with Effect in respect to of such Borrower, except as set forth in such Borrower's annual report on Form 10-K for the year ended December 31, 2004, filed with the Securities and Exchange Commission, and such Borrower's quarterly report on Form 10-Q for the quarter ended March 31, 2005, filed with the Securities and Exchange Commission, or, in the case of representations by the MLP only, as set forth in its filings with the Securities and Exchange Commission, or (ii) which purports to affect the legality, validity, binding effect or enforceability of any Credit Document.
(g) No written statementproceeds of any Revolving Credit Advance will be used for any purpose or in any manner contrary to the provisions of Section 5.2(j).
(h) No Borrower is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U), informationand no proceeds of any Revolving Credit Advance will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
(i) No Borrower is an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, reportas amended.
(j) No Termination 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 in respect of any Borrower. No Credit Party nor any Subsidiary or ERISA Affiliate of any Credit Party has received any notification that any Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA that could reasonably be expected to have a Material Adverse Effect in respect of any Borrower, and no Credit Party is aware of any reason to expect that any Multiemployer Plan is to be in reorganization or to be terminated within the meaning of Title IV of ERISA that would have a Material Adverse Effect in respect of any Borrower.
(k) [Reserved]
(l) No Borrower 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 -44- company," or a "public utility" within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(m) Except as set forth in a Borrower's annual report on Form 10-K for the year ended December 31, 2004, filed with the Securities and Exchange Commission, and such Borrower's quarterly report on Form 10-Q for the quarter ended March 31, 2005, filed with the Securities and Exchange Commission, or in the case of representations by the MLP only, as set forth in any of its filings with the Securities and Exchange Commission, or as disclosed in writing by any Borrower to the Banks and the Agent after the date hereof and approved in writing by the Majority Banks, each Borrower and its Material Subsidiaries are in compliance with all applicable Environmental Laws, except as could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower. Except as disclosed in writing by any Borrower to the Banks and the Agent after the date hereof and approved in writing by the Majority Banks, the aggregate contingent and non-contingent liabilities of each Borrower and its Material Subsidiaries (other than those reserved for in accordance with GAAP and excluding liabilities to the extent covered by insurance if the insurer has confirmed that such insurance covers such liabilities or which such Borrower reasonably expects to recover from ratepayers) which to such Borrower's knowledge are reasonably expected to arise in connection with (i) the requirements of any Environmental Law or (ii) any obligation or liability to any Person in connection with any Environmental matters (including any release or threatened release (as such terms are defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980) of any Hazardous Waste, Hazardous Substance, other waste, petroleum or petroleum products into the Environment) could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower. Each Borrower and its Material Subsidiaries holds, or has submitted a good faith application for all Environmental Permits (none of which have been terminated or denied) required for any of its current operations or for any property owned, leased, or otherwise operated by it; and is, and within the period of all applicable statutes of limitation has been, in compliance with all of its Environmental Permits, except where the failure to comply with the matters set forth in this sentence, in the aggregate, could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower.
(n) No Default or Event of Default has occurred and is continuing.
(o) As of the date hereof, each Revolving Credit Facility Increase Effective Date and each Letter of Credit Facility Increase Effective Date only, after giving effect to the Credit Documents and each transaction thereunder (including each Revolving Credit Advance and each Letter of Credit), each Credit Party, individually and together with its Subsidiaries, is Solvent.
(p) At all times prior to the Collateral Release Date, an Acceptable Security Interest in all Collateral exists. Unless the Collateral Release Date has occurred, Pipeline Holdco is the legal and beneficial owner of all Collateral free and clear of any Lien other than Collateral Permitted Liens.
(q) As of the date hereof only, none of the reports, financial statementstatements, exhibit certificates or schedule other written information furnished by or on behalf of such any Borrower to the Administrative Agent, any Lender Agent or any LC Issuing Bank in connection with on or prior to the syndication date hereof (as modified or negotiation of this Agreement supplemented by other information so furnished on or included herein or delivered pursuant hereto containedprior to the date hereof), containstaken as a whole, or will contain contains any material misstatement of fact or intentionally omitted, omits, or will omit omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be were made, not materially misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rulesprovided that, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Planprojected financial information, the Borrowers represent only that such information was prepared in good faith based upon assumptions believed by the Borrowers to be reasonable at the time (it being recognized, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by any projections may materially differ from the projected results). Such None of the reports, financial statements, certificates or other written information furnished by or on behalf of any Borrower has not incurred, and does not presently expect to incurthe Agent, any withdrawal liability under Title IV of ERISA with respect to Issuing Bank or any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and Bank after the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” date hereof (as defined modified or supplemented by other information so furnished after the date hereof), taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, 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 light of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan circumstances under which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pensionthey were made, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclenot materially misleading.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers ----------------------------------------------- represent and warrants warrant as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower each of the Borrowers of this AgreementAmendment, the Allonges and all other Loan Documents, as amended, to which the consummation of the transactions contemplated hereby, Borrowers are within such Borrower’s corporate powersor will be a party, have been duly authorized by all necessary action, corporate action of each of the Borrowers and do not and will not (A) contravene (i) such Borrower’s certificate of incorporation the charter or by-lawslaws of any of the Borrowers, (iiB) law binding violate in any material respect any provision of any applicable law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or affecting such Borrower award presently in effect, (C) 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 any of the Borrowers or any Subsidiary of the Borrowers are a party or by which they or their properties may be bound or affected, or (iiiD) result in, or require, the creation or imposition of any contractual restriction binding on mortgage, deed of trust, pledge, lien, security interest or affecting other charge or encumbrance of any nature (other than as required hereunder) upon or with respect to any of the properties now owned or hereafter acquired by any of the Borrowers; neither the Borrowers nor any Subsidiary of the Borrowers is in default under any such Borrower law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any of its propertiessuch indenture, agreement, lease or instrument.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(db) 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 the due execution, delivery and performance by such Borrower the Borrowers of this AgreementAmendment or any of the Loan Documents, except for such Governmental Approvals that may be required as amended hereby, to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerthey are a party.
(ec) There is no pending or threatened action, suit, investigation, litigation action or proceeding, including, without limitation, proceeding affecting any Environmental Action, affecting such Borrower of the Borrowers or any of its Significant their Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to arbitrator, which may have a Material Adverse EffectEffect or which purport to affect the legality, except validity or enforceability of this Amendment or any of the other Loan Documents, as disclosed amended hereby.
(d) This Amendment and each of the other Loan Documents, as amended hereby, to which the Borrowers are a party constitute and each of the other Loan Documents to which the Borrowers are to be a party when delivered hereunder will constitute legal, valid and binding obligations of any of the Borrowers enforceable against each of the Borrowers in accordance with their respective terms.
(e) The representations and warranties contained in the Disclosure DocumentsRestated Credit Agreement are correct on and as of the date of this Amendment as though made on and as of this date.
(f) The consolidated balance sheet No event has occurred and is continuing which constitutes an Event of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements Default or would constitute an Event of income and cash flows of such Borrower and its Consolidated Subsidiaries Default but for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowerrequirement that notice be given or time elapse or both.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Samples: Credit Agreement (Pepsi Cola Puerto Rico Bottling Co)
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant to the Lender as set forth in this part of the Loan Agreement. All representations and warranties shall survive all borrowings and no investigation at any time made by or on behalf of a Lender shall diminish in any respect whatsoever its right to rely thereon. The Borrowers represent and warrant to the Lender as follows:
(a) Such Borrower each of the Borrowers has full corporate power and authority to own its properties and to enter into and perform its obligations under this Loan Agreement and the Ancillary Documents and to do all acts and things and execute and deliver all other documents as are required hereunder or thereunder to be done, observed or performed by it in accordance with their terms;
(b) each of the Borrowers has taken all necessary action to authorize the creation, execution, delivery and performance of this Loan Agreement and to observe and perform the provisions of each in accordance with its terms as of the date hereof and the Loan Agreement and each of the Ancillary Documents has been duly executed by the Borrowers, as required, and when delivered will be legal, valid and binding obligations of the Borrowers, enforceable in accordance with their terms, save as enforcement may be limited by applicable bankruptcy, insolvency, moratorium and similar laws at the time in effect affecting the rights of creditors generally and subject to equitable principles which may limit the availability of certain remedies;
(c) each of the Borrowers is a corporation duly organizedcompany, validly existing and in good standing with respect to the filing of required corporate returns under the laws of the its jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organizedqualified, validly existing and in good standing under and authorized to do business in all jurisdictions where the laws character of the jurisdiction in which properties owned by it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation nature of the transactions contemplated hereby, are within business transacted by it makes such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.qualification necessary;
(d) No authorization or approval or other action by, the execution 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 of the Loan Agreement and the Ancillary Documents will not contravene any material provision of any regulation, order or permit applicable to the Borrowers or cause a conflict with or contravention of either of their constating documents or cause a breach of or constitute a default under or require any consent under any agreement or instrument to which either Borrower is a party or by which either Borrower is bound except such as have been obtained;
(e) neither Borrower is in default under any agreement or instrument to which it is a party in any way which materially adversely affects its business and there are no suits or judicial proceedings or proceedings before any governmental commission, board or other agency pending or to the knowledge of this either Borrower or threatened against either Borrower which involves a significant risk of a judgment or liability which, if satisfied, would have a materially adverse affect upon the financial position of either Borrower or the ability to borrow or meet the Borrowers' obligations under the Loan Agreement;
(f) each Borrower has all leases, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or licenses, permits and consents as are essential for the account carrying on of its business in the manner in which its business is carried on and all such Borrowerleases, each of which Governmental Approvals will have been obtained licenses, permits and will be consents are in full force and effect on and no proceedings relating thereto are pending or prior known to either Borrower which materially adversely affects its business;
(g) neither Borrower is in default under any guarantee, bond, debenture, note or other instrument evidencing any indebtedness or under the terms of any instrument pursuant to which any of the foregoing has been issued or made and delivered and, to the date knowledge of any Extension either Borrower there exists no state of Credit to facts which, after notice or for the account lapse of time or both would constitute such Borrower.a default;
(eh) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of ICHOR has furnished to the Lenders its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated most recent audited financial statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then endedended January 31, accompanied by an opinion of Deloitte & Touche LLP1996, an independent registered public accounting firm, copies of each of which all such financial statements have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all prepared in accordance with generally accepted accounting principles consistently applied. Since December 31applied on a consistent basis, 2007except as stated therein or in the notes thereto, and present fairly the financial position of the Borrowers as at the date thereof; and
(i) since January 1, 1996, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, material adverse change in the financial statement, exhibit or schedule furnished by or on behalf condition of such Borrower the Borrowers from that shown in the financial statements delivered to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, other than in the light ordinary course of their respective businesses, and any such change in the ordinary course of their respective businesses has not been materially adverse to the businesses of the circumstances under which they were, are, or will be made, not misleading.
(h) Except Borrowers except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.Lender;
Appears in 1 contract
Samples: Loan Agreement (PDG Remediation Inc)
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants as of the date hereof as follows:
(ai) Such Each Borrower is a corporation corporation, duly organized, validly existing and in good standing under the laws Laws of Delaware and has the power and authority to own its property and to carry on its business in each jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws does a material volume of the jurisdiction in which it is incorporated or otherwise organizedbusiness.
(bii) The executionEach Borrower has full power and authority to execute and deliver this Agreement and to incur and perform the obligations provided for herein, delivery and performance by such Borrower all of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, which have been duly authorized by all proper and necessary actionaction of the board of directors of such Borrower. No consent or approval of any public authority or other third party is required as a condition to the validity of this Agreement, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such each Borrower or is in compliance with all Laws and regulatory requirements to which it is subject.
(iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is constitutes the legal, valid and legally binding obligation of such Borrower each Borrower, enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(eiv) There is no pending charter, bylaw, stock provision, partnership agreement or threatened actionother document pertaining to the organization, suit, investigation, litigation power or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet authority of each Borrower and no provision of any existing agreement, mortgage, indenture or contract binding on such Borrower or affecting its Consolidated Subsidiaries property, which would conflict with or in any way prevent the execution, delivery or carrying out of the terms of this Agreement.
(v) The financial statements of each Borrower as at December of and for the fiscal quarter ended March 31, 20072019 previously delivered to the Lenders fairly present, and in all material respects, the related consolidated statements financial condition, results of income operations, shareholders’ equity and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will GAAP and do not contain any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit 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, are, or will be were made, not misleading.. 1752661.04-NYCSR03A - MSW
(hvi) Except as disclosed in to the Disclosure DocumentsLenders on Schedule II hereto, (a) there is no action, claim, notice of violation, order to show cause, complaint, investigation, or proceeding involving any Borrower pending or, to the knowledge of any Borrower threatened before any court or Governmental Authority, agency or arbitration authority or (b) there is no outstanding decree, decision, judgment, or order that has been issued by any court, Governmental Authority, agency or arbitration authority against such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itor its FCC Licenses.
(ia) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 Each of the Internal Revenue CodeFCC Licenses issued to any Borrower is valid, binding, in full force and effect, and enforceable by such Borrower in accordance with its terms; (b) any Borrower that is the holder of each such FCC License has performed all obligations thereunder in all material respects and has not received written notice of intention to terminate any FCC License or written notice alleging a material default (other than letters of default that have been rescinded or with respect to defaults that have been cured or waived); and (c) no event caused by, relating to or affecting any Borrower that is the holder of an FCC License has occurred which (with or without the giving of notice or lapse of time, or both) would constitute a Material Adverse Change by any Borrower of the terms of such FCC License, the Communications Act of 1934, as amended (the “Communications Act”), or the rules, regulations, written policies, orders and decisions of the Federal Communications Commission (“FCC”) adopted under the Communications Act, in each case as from time to time in effect (the “FCC Rules”).
(viii) Except for proceedings affecting the broadcasting industry generally, neither Borrower is a party to or has knowledge of any investigation, notice of apparent liability, violation, forfeiture or other order or complaint issued by or before the FCC, or of any other proceedings which could in any manner threaten or adversely affect the validity or continued effectiveness of the FCC Licenses of any such Person or give rise to any order of forfeiture that would reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect Change. Neither Borrower has any reason to believe that the FCC Licenses issued to any PlanBorrower will not be renewed in the ordinary course. Such Each Borrower has not incurredfiled in a timely manner all material reports, applications, documents, instruments and information required to be filed by it pursuant to the FCC Rules. No licenses, authorizations, permits or other rights other than the FCC Licenses are required under the Communications Act or the FCC Rules to operate the respective businesses of the Borrowers in substantially the manner it is being operated as of the date of this Agreement.
(ix) Parent owns all of the issued and outstanding capital stock of each of the Operating Subsidiaries, and does all such capital stock is validly issued, fully paid and non-assessable and is free and clear of all liens or adverse claims, other than the security interest in favor of the Lenders or as would 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 constitute a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” Change.
(as defined in Section 3 of ERISAx) which is and has been established No representation or maintained, or to which contributions are or have been made or should be made according to the terms of the plan warranty by any Borrower in this Agreement or in any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean the other documents or instruments executed in connection herewith and no statement contained any Plan which is certificate or other document furnished or to be furnished to the Lenders pursuant to this Agreement contains any untrue statement of a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensationmaterial fact, or other employee benefit planomits to state a material fact necessary to make the statements contained therein, program or arrangement maintained by any entity subsidiary whichin light of the circumstances in which they are made, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.not misleading. 1752661.04-NYCSR03A - MSW
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower Borrower, with respect to itself and its Subsidiaries only, represents and warrants warrants, on the date hereof, on the date of each Revolving Credit Borrowing or issuance or increase in the amount of any Letter of Credit and each Added L/C Effective Date, as follows:
(a) Such Each Borrower is a corporation duly organizedorganized or validly formed, validly existing and (if applicable) in good standing under the laws of the jurisdiction State of Delaware and has all corporate, limited partnership or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in which it is incorporated all material respects, except where failure to be in good standing or otherwise organizedto have those licenses, authorizations, certificates, consents and each Significant approvals could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower. Each Material Subsidiary of such each Borrower is duly organizedorganized or validly formed, validly existing and (if applicable) in good standing under the laws of its jurisdiction of incorporation or formation, except where the jurisdiction failure to be so organized or formed, existing and in good standing could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower. Each Material Subsidiary of a Borrower has all corporate, limited partnership or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals the failure to have which it is incorporated or otherwise organizedcould not reasonably be expected to have a Material Adverse Effect in respect of such Borrower.
(b) The execution, delivery and performance by such Borrower each of this Agreement, the Borrowers and the other Credit Parties of the Credit Documents to which it is shown as being a party and the consummation of the transactions contemplated hereby, thereby are within such Borrower’s corporate or such other Credit Party’s, as the case may be, corporate, limited partnership or limited liability company powers, have been duly authorized by all necessary corporate, limited partnership or limited liability company action, and do not contravene (i) such any Borrower’s certificate of incorporation or such other Credit Party’s, as the case may be, charter, by-laws, laws or formation agreement or (ii) law binding or affecting such Borrower or (iii) any contractual restriction under any material agreement binding on or affecting such any Borrower or other Credit Party and will not result in or require the creation or imposition of any of its propertiesLien prohibited by this Agreement.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing.
(d) No material 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 Governmental Authority is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date Party of any Extension Credit Document to which it is a party, or the consummation of Credit to or for the account of such Borrowertransactions contemplated thereby.
(ed) There Each Credit Document has been duly executed and delivered by each appropriate Credit Party, and is no pending or threatened actionthe legal, suitvalid and binding obligation of each such Credit Party, investigationenforceable against each such Credit Party, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of in accordance with its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effectterms, except as disclosed such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and by general principles of equity, and except that the representations in this sentence in respect of the Disclosure DocumentsPipeline Holdco Guaranty are not made after the Pipeline Holdco Release Date.
(fi) The consolidated Consolidated balance sheet of each Borrower TWC and its Consolidated Subsidiaries as at December 31, 20072005, and the related consolidated Consolidated statements of income and cash flows of such Borrower TWC and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each LenderBank, fairly present in all material respects the consolidated Consolidated financial condition of such Borrower TWC and its Consolidated Subsidiaries as at such date and the consolidated Consolidated results of the operations of such Borrower TWC and its Consolidated Subsidiaries for the period year ended on such date, all in accordance with generally accepted accounting principles consistently appliedGAAP. Since As of the date hereof only, from December 31, 20072005 to the date of this Agreement, there has been no material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of TWC and its Subsidiaries (other than Non-Recourse Subsidiaries and International Subsidiaries), taken as a whole.
(ii) The Consolidated balance sheet of NWP and its Subsidiaries as at December 31, 2005, and the related Consolidated statements of income and cash flows of NWP and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, fairly present in all material respects the Consolidated financial condition of NWP and its Subsidiaries as at such date and the Consolidated results of operations of NWP and its Subsidiaries for the year ended on such date, all in accordance with GAAP. As of the date hereof only, from December 31, 2005 to the date of this Agreement, there has been no material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of NWP and its Subsidiaries (other than Non-Recourse Subsidiaries and International Subsidiaries), taken as a whole.
(iii) The Consolidated balance sheet of TGPL and its Subsidiaries as at December 31, 2005, and the related Consolidated statements of income and cash flows of TGPL and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, fairly present in all material respects the Consolidated financial condition of TGPL and its Subsidiaries as at such date and the Consolidated results of operations of TGPL and its Subsidiaries for the year ended on such date, all in accordance with GAAP. As of the date hereof only, from December 31, 2005 to the date of this Agreement, there has been no material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of TGPL and its Subsidiaries (other than Non-Recourse Subsidiaries and International Subsidiaries), taken as a whole.
(iv) The Consolidated balance sheet of MLP and its Subsidiaries as at December 31, 2005, and the related Consolidated statements of income and cash flows of MLP and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, fairly present in all material respects the Consolidated financial condition of MLP and its Subsidiaries as at such date and the Consolidated results of operations of MLP and its Subsidiaries for the year ended on such date, all in accordance with GAAP. As of the date hereof only, from December 31, 2005 to the date of this Agreement, there has been no material adverse change in the business, condition (financial or otherwise), operations, properties or prospects of MLP and its Subsidiaries (other than Non-Recourse Subsidiaries and International Subsidiaries), taken as a whole.
(f) There is, as to each Borrower (other than the MLP), no pending or, to the knowledge of such Borrower as of the date hereof, threatened action or proceeding affecting such Borrower or any Material Subsidiary of such Borrower before any court, governmental agency or arbitrator, (i) which could reasonably be expected to have a Material Adverse Change with Effect in respect to of such Borrower, except as set forth in such Borrower’s annual report on Form 10-K for the year ended December 31,2005, filed with the Securities and Exchange Commission, or (ii) which purports to affect the legality, validity, binding effect or enforceability of any Credit Document.
(g) No written statementproceeds of any Revolving Credit Advance will be used for any purpose or in any manner contrary to the provisions of Section 5.2(j).
(h) No Borrower is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U), informationand no proceeds of any Revolving Credit Advance will be used to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
(i) No Borrower is an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, reportas amended.
(j) No Termination 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 in respect of any Borrower. No Credit Party nor any Subsidiary or ERISA Affiliate of any Credit Party has received any notification that any Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA that could reasonably be expected to have a Material Adverse Effect in respect of any Borrower, and no Credit Party is aware of any reason to expect that any Multiemployer Plan is to be in reorganization or to be terminated within the meaning of Title IV of ERISA that would have a Material Adverse Effect in respect of any Borrower; provided that neither MLP nor any of its Subsidiaries shall be considered to be a “Borrower”, “Credit Party”, “ERISA Affiliate” or “Subsidiary” for purposes of this Section 4.1(j).
(k) Except as set forth in a Borrower’s annual report on Form 10-K for the year ended December 3 1,2005, filed with the Securities and Exchange Commission, or in the case of representations by the MLP only, as set forth in any of its filings with the Securities and Exchange Commission, or as disclosed in writing by any Borrower to the Banks and the Agent after the date hereof and approved in writing by the Majority Banks, each Borrower and its Material Subsidiaries are in compliance with all applicable Environmental Laws, except as could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower. Except as disclosed in writing by any Borrower to the Banks and the Agent after the date hereof and approved in writing by the Majority Banks, the aggregate contingent and non-contingent liabilities of each Borrower and its Material Subsidiaries (other than those reserved for in accordance with GAAP and excluding liabilities to the extent covered by insurance if the insurer has confirmed that such insurance covers such liabilities or which such Borrower reasonably expects to recover from ratepayers) which to such Borrower’s knowledge are reasonably expected to arise in connection with (i) the requirements of any Environmental Law or (ii) any obligation or liability to any Person in connection with any Environmental matters (including any release or threatened release (as such terms are defined or used in the Comprehensive Environmental Response, Compensation and Liability Act of 1980) of any Hazardous Waste, Hazardous Substance, other waste, petroleum or petroleum products into the Environment) could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower. Each Borrower and its Material Subsidiaries holds, or has submitted a good faith application for all Environmental Permits (none of which have been terminated or denied) required for any of its current operations or for any property owned, leased, or otherwise operated by it; and is, and within the period of all applicable statutes of limitation has been, in compliance with all of its Environmental Permits, except where the failure to comply with the matters set forth in this sentence, in the aggregate, could not reasonably be expected to have a Material Adverse Effect in respect of such Borrower.
(l) No Default or Event of Default has occurred and is continuing.
(m) As of the date hereof only, after giving effect to the Credit Documents and each transaction thereunder (including each Revolving Credit Advance and each Letter of Credit), each Credit Party, individually and together with its Subsidiaries, is Solvent.
(n) As of the date hereof only, neither the Confidential Information Memorandum dated April, 2006 relating to the Borrowers and the transactions contemplated hereby nor any of the other reports, financial statementstatements, exhibit certificates or schedule other written information furnished by or on behalf of such any Borrower to the Administrative Agent, any Lender Agent or any LC Issuing Bank in connection with on or prior to the syndication date hereof (as modified or negotiation of this Agreement supplemented by other information so furnished on or included herein or delivered pursuant hereto containedprior to the date hereof), containstaken as a whole, or will contain contains any material misstatement of fact or intentionally omitted, omits, or will omit omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be were made, not materially misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rulesprovided that, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Planprojected financial information, the Borrowers represent only that such information was prepared in good faith based upon assumptions believed by the Borrowers to be reasonable at the time (it being recognized, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by any projections may materially differ from the projected results). Such None of the reports, financial statements, certificates or other written information furnished by or on behalf of any Borrower has not incurred, and does not presently expect to incurthe Agent, any withdrawal liability under Title IV of ERISA with respect to Issuing Bank or any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and Bank after the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” date hereof (as defined modified or supplemented by other information so furnished after the date hereof), taken as a whole, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, 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 light of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan circumstances under which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pensionthey were made, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclenot materially misleading.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction indicated with respect to it in which it is incorporated or otherwise organized, the recital of parties to this Amendment and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedLimited Waiver.
(b) The execution, delivery and performance by such Borrower of this AgreementAmendment and Limited Waiver and the Loan Documents, as amended hereby, to which it is or is to be a party, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (i) contravene such Borrower’s certificate of incorporation charter or by-by laws, (ii) law binding violate any law, rule or affecting such Borrower regulation, or (iii) any contractual restriction order, writ, judgment, injunction, decree, determination or award, binding on or affecting such Borrower or any of its 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 such Borrower, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under any Loan Document, as amended hereby, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of such Borrower or any of its Subsidiaries.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and or performance by such Borrower of this AgreementAmendment and Limited Waiver or any of the Loan Documents, except for such Governmental Approvals that may be required as amended hereby, to which it is or is to be obtained a party.
(d) This Amendment and Limited Waiver has been duly executed and delivered by such Borrower. This Amendment and Limited Waiver and each of the other Loan Documents, as amended hereby, to which such Borrower in connection with any Extension of Credit to or for the account is a party are legal, valid and binding obligations of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting enforceable against such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertheir respective terms.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Samples: Credit Agreement (Maxxam Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, organized and validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits incorporation.
(b) The execution, delivery and performance by such Borrower of this Agreement, Amendment and the consummation of the transactions contemplated Facility Documents, as amended hereby, to which it is or is to be a party are within such Borrower’s 's corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower Borrower, or result in, or require, the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge, encumbrance or preferential arrangement of any nature upon or with respect to any of its propertiesthe properties now owned or hereafter acquired by such Borrower, or (iii) to the best of such Borrower's knowledge, any law.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legalNo authorization, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this AgreementAmendment or any of the Facility Documents, except for such Governmental Approvals that may be required as amended hereby, to which it is or is to be obtained by a party.
(d) This Amendment and each of the other Facility Documents as amended hereby, to which such Borrower is a party constitute legal, valid and binding obligations of such Borrower enforceable against such Borrower in connection accordance with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowertheir respective terms.
(e) There To the best of such Borrower's knowledge, the Security Agreement constitutes valid and perfected first priority security interests and liens in and to the Collateral covered thereby enforceable against all third parties in all jurisdictions and secure the payment of all obligations of such Borrower under the Facility Documents, as amended hereby, and the execution, delivery and performance of this Amendment do not adversely affect the aforesaid security interests and liens of such Security Agreement.
(f) Except as set forth in Schedule 4(f), there is no pending or threatened action, suit, investigation, litigation action or proceeding, including, without limitation, any Environmental Action, proceeding affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effectarbitrator, except as disclosed in which may materially adversely affect the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the or operations of such Borrower and its Consolidated Subsidiaries for or any Subsidiary or which purport to affect the period ended on such datelegality, all in accordance with generally accepted accounting principles consistently applied. Since December 31validity or enforceability of this Amendment or any of the other Facility Documents, 2007, there has been no Material Adverse Change with respect to such Borroweras amended hereby.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 After giving effect to the terms of the plan by any Borrower Amendment, no event has occurred and is continuing which constitutes a Default or any an Event of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleDefault.
Appears in 1 contract
Samples: Credit Agreement (Us Homecare Corp)
Representations and Warranties of the Borrowers. (a) Each Borrower represents and warrants with respect to itself as follows:
(a) : Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own its property and assets and to carry on its business as now conducted and is qualified to do business in which it every jurisdiction where, because of the nature of its business or property, such qualification is incorporated required, except where the failure so to qualify would not have a material adverse effect on the financial condition, properties, prospects or otherwise organized, and each Significant Subsidiary operations of such Borrower. Such Borrower is duly organizedhas the corporate power to execute, validly existing deliver and in good standing perform its obligations under the laws of the jurisdiction in which it is incorporated or otherwise organizedLoan Documents and to borrow hereunder.
(b) The execution, delivery and performance of the Loan Documents by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate or other similar action, and do not and will not contravene (i) such Borrower’s certificate of incorporation 's, charter or by-laws, as the case may be, or any law or legal restriction or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement Except as disclosed in such Borrower's Disclosure Documents, such Borrower is not in violation of any law or in default with respect to any judgment, writ, injunction, decree, rule or regulation (including any of the foregoing relating to environmental laws and regulations) of any court or governmental agency or instrumentality where such violation or default would reasonably be expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower.
(d) There has been duly executed and delivered by no material adverse development with respect to (i) such Borrower's proceedings to divest its generating assets, or (ii) any orders, plans or authorizations for recovery of its stranded assets, where any such development results, or would reasonably be expected to result, in a material adverse effect on the financial condition, properties, prospects or operations of such Borrower, other than as described in the Disclosure Documents.
(e) All Governmental Approvals referred to in clauses (i) and (ii) of the definition of "Governmental Approvals" have been duly obtained or made, and all applicable periods of time for review, rehearing or appeal with respect thereto have expired, except as described below. This Agreement If the period for appeal of the order of the Securities and Exchange Commission approving the transactions contemplated hereby has not expired, the filing of an appeal of such order will not affect the validity of said transactions, unless such order has been otherwise stayed or any of the parties hereto has actual knowledge that any of such transactions constitutes a violation of the Public Utility Holding Company Act of 1935 or any rule or regulation thereunder. No such stay exists and no Borrower has any reason to believe that any of such transactions constitutes any such violation. Such Borrower has obtained or made all Governmental Approvals referred to in clause (iii) of the definition of "Governmental Approvals", except (A) those which are not yet required but which are obtainable in the ordinary course of business as and when required, (B) those the absence of which would not materially adversely affect the financial condition, properties, prospects or operations of such Borrower and (C) those which such Borrower is diligently attempting in good faith to obtain, renew or extend, or the requirement for which such Borrower is contesting in good faith by appropriate proceedings or by other appropriate means, in each case described in the foregoing clause (C), except as is disclosed in such Borrower's Disclosure Documents, such attempt or contest, and any delay resulting therefrom, is not reasonably expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower or to magnify to any significant degree any such material adverse effect that would reasonably be expected to result from the absence of such Governmental Approval.
(f) The Loan Documents to which such Borrower is a party are legal, valid and binding obligation obligations of such Borrower enforceable against such Borrower in accordance with its their respective terms; subject to the qualification, except as however, that the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or enforcement of the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general application affecting rights and remedies of creditors and the enforcement application of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought considered in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealing).
(dg) 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 such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account The Financial Statements of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished provided to the Administrative Agent and each Lenderof the Lenders, fairly present in all material respects the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower (in the case of CL&P, on a consolidated basis) at and its Consolidated Subsidiaries for the period ended on such datethe dates thereof, all and have been prepared in accordance with generally accepted accounting principles consistently applied. Since December 31June 30, 20072000, there has been no Material Adverse Change material adverse change in the consolidated (or in the case of WMECO, unconsolidated) financial condition, operations, properties or prospects of such Borrower and its Subsidiaries, if any, taken as a whole, except as disclosed in such Borrower's Disclosure Documents.
(h) There is no pending or known threatened action or proceeding (including, without limitation, any action or proceeding relating to any environmental protection laws or regulations) affecting such Borrower or its properties, before any court, governmental agency or arbitrator (i) which affects or purports to affect the legality, validity or enforceability of any Loan Document or (ii) as to which there is a reasonable possibility of an adverse determination and which, if adversely determined, would materially adversely affect the financial condition, properties, prospects or operations of such Borrower, except, for purposes of this clause (ii) only, such as is described in such Borrower's Disclosure Documents or in Schedule II hereto.
(i) No ERISA Plan Termination Event has occurred nor is reasonably expected to occur with respect to any ERISA Plan which would materially adversely affect the financial condition, properties, prospects or operations of such Borrower taken as a whole, except as disclosed to the Lenders and consented to by the Majority Lenders in writing. Since the date of the most recent Schedule B (Actuarial Information) to the annual report of each such ERISA Plan (Form 5500 Series), there has been no material adverse change in the funding status of the ERISA Plans referred to therein, and no "prohibited transaction" (as defined in Section 4975 of the Internal Revenue Code of 1986, as amended, and in ERISA) has occurred with respect thereto that, singly or in the aggregate with all other "prohibited transactions" and after giving effect to all likely consequences thereof, would be reasonably expected to have a material adverse effect on the financial condition, properties, prospects or operations of such Borrower. Neither such Borrower nor any of its ERISA Affiliates has incurred nor reasonably expects to incur any material withdrawal liability under ERISA to any ERISA Multiemployer Plan, except as disclosed to and consented by the Majority Lenders in writing.
(gj) Such Borrower has good and marketable title (or, in the case of personal property, valid title) or valid leasehold interests in its assets, except for (i) minor defects in title that do not materially interfere with the ability of such Borrower to conduct its business as now conducted and (ii) other defects that, either individually or in the aggregate, do not materially adversely affect the financial condition, properties, prospects or operations of such Borrower. All such assets and properties are free and clear of any Lien, other than Liens permitted under Section 7.02(a) hereof.
(k) All outstanding shares of capital stock having ordinary voting power for the election of directors of such Borrower have been validly issued, are fully paid and nonassessable and are owned beneficially by NU, free and clear of any Lien. NU is a "holding company" (as defined in the Public Utility Holding Company Act of 1935, as amended).
(l) Such Borrower has filed all tax returns (Federal, state and local) required to be filed and paid taxes shown thereon to be due, including interest and penalties, or, to the extent such Borrower is contesting in good faith an assertion of liability based on such returns, has provided adequate reserves in accordance with generally accepted accounting principles for payment thereof.
(m) No exhibit, schedule, report or other written statement, information, report, financial statement, exhibit or schedule furnished information provided by or on behalf of such Borrower or its agents to the Administrative Agent, any Lender Agent or any LC Issuing Bank the Lenders in connection with the syndication or negotiation negotiation, execution and closing of this Agreement or included herein or delivered pursuant hereto containedthe Loan Documents (including, containswithout limitation, or will contain the Financial Statements and the Information Memorandum (but excluding the projections contained in the Information Memorandum)) knowingly contained when made any material misstatement of fact or intentionally omitted, omits, or will omit knowingly omitted to state any material fact necessary to make the statements therein, contained therein not misleading in the light of the circumstances under which they werewere made. Except as has been disclosed to the Administrative Agent and each Lender, arethe projections delivered concurrently with the Information Memorandum were prepared in good faith on the basis of assumptions reasonable as of the date of the Information Memorandum, it being understood that such projections do not constitute a warranty or will binding assurance of future performance. Except as has been disclosed to the Administrative Agent and each Lender, nothing has come to the attention of the responsible officers of such Borrower that would indicate that any of such assumptions, to the extent material to such projections, has ceased to be made, not misleadingreasonable in light of subsequent developments or events.
(hn) Except as disclosed All proceeds of the Advances shall be used (i) for the general corporate purposes of such Borrower, including to provide liquidity support for such Borrower's commercial paper, and (ii) to provide liquidity to the NU System Money Pool. No proceeds of any Advance will be used in violation of, or in any manner that would result in a violation by any party hereto of, Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System or any successor regulations. Such Borrower (A) is not an "investment company" within the meaning ascribed to that term in the Disclosure DocumentsInvestment Company Act of 1940 and (B) is not engaged in the business of extending credit for the purpose of buying or carrying margin stock.
(o) Such Borrower has no Subsidiaries, other than those listed on Schedule III hereto, each of which is either inactive or a special purpose entity used solely in connection with the financing activities of such Borrower, and none of which, either individually or collectively with all other Subsidiaries of such Borrower, represents 10% or more of such Borrower's consolidated assets or 10% or more of such Borrower's consolidated net income (or loss) on any date or for any relevant period of determination.
(p) Such Borrower has obtained the insurance specified in Section 7.01(c) hereof and each Significant Subsidiary the same is in full force and effect.
(q) Each of the Mortgages creates a valid and enforceable mortgage on the interest of the Borrower party thereto in the "Mortgaged Premises" described therein in favor of the Collateral Agent for the benefit of the Lenders to secure the obligations of such Borrower is to the Lenders under the Loan Documents, and upon the recording or filing of such Mortgage in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 the Office of the Internal Revenue Code) that could reasonably be expected to Town Clerk of Waterford, Connecticut, the Collateral Agent shall have a Material Adverse Effectperfected mortgage in the "Mortgaged Premises" described therein, whether or not waived, exists with respect subject to any Plan. Such Borrower has not incurred, no other Liens except as described in such Mortgage and does not presently expect to incur, any withdrawal liability Liens permitted under Title IV of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA7.02(a) 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclehereof.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each In order to induce Lender to enter into this Amendment, each Borrower represents and warrants as followsto Lender that:
(a) Such Borrower is a corporation duly organizedThe representations and warranties contained in Article V of the Original Agreement are true and correct at and as of the time of the effectiveness hereof, validly existing except to the extent that the facts on which such representations and in good standing warranties are based have been changed by the extension of credit under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedCredit Agreement.
(b) Such Borrower is duly authorized to execute and deliver this Amendment and is and will continue to be duly authorized to borrow monies and to perform its obligations under the Credit Agreement. Such Borrower has duly taken all corporate action necessary to authorize the execution and delivery of this Amendment and to authorize the performance of the obligations of such Borrower.
(c) The executionexecution and delivery by such Borrower of this Amendment, delivery and the performance by such Borrower of this Agreement, its obligations hereunder and the consummation of the transactions contemplated herebyhereby do not and will not conflict with any provision of law, are within statute, rule or regulation or of the organizational documents of such Borrower’s corporate powers, or of any material agreement, judgment, license, order or permit applicable to or binding upon such Borrower, or result in the creation of any lien, charge or encumbrance upon any assets or properties of such Borrower. Except for those which have been duly authorized obtained, no consent, approval, authorization or order of any court or governmental authority or third party is required in connection with the execution and delivery by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower of this Amendment or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesto consummate the transactions contemplated hereby.
(cd) This Agreement has been When duly executed and delivered by such Borrower. This delivered, each of this Amendment and the Credit Agreement is the legal, valid will be a legal and binding obligation of such Borrower the Borrowers, enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance insolvency or other similar laws affecting of general application relating to the enforcement of creditors’ ' rights in general, and except as the availability of the remedy of specific performance is subject to general by equitable principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggeneral application.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers represents and warrants as to itself as follows:
(a) Such Borrower and its Guarantor, if any, is a corporation corporation, general partnership or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated of its incorporation or otherwise organized, formation and each Significant Subsidiary of such Borrower is duly organized, validly existing qualified and in good standing in each jurisdiction wherein the failure to so qualify would have a material adverse effect on the financial condition or results of operations of such Borrower and its Subsidiaries, taken as a whole. Each of the Subsidiaries of such Borrower and its Guarantor, if any, is duly organized and validly existing under the laws of the its jurisdiction in which it is incorporated of incorporation or otherwise organizedformation.
(b) The execution, delivery and performance by such Borrower and its Guarantor, if any, of this Agreementeach Loan Document to which it is a party delivered hereunder, and the consummation of the transactions contemplated hereby, are within such Borrower’s their respective corporate or other similar organization powers, have been duly authorized by all necessary corporate or other similar organization action, and do not contravene (i) such Borrower’s certificate of incorporation or their respective charter, by-laws, laws or other organizational documents or (ii) law binding or affecting such Borrower or (iii) any material contractual restriction binding on or affecting such Borrower or any of its propertiessuch Guarantor, as the case may be.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower and its Guarantor, if any, of this AgreementAgreement or any other Loan Document to which it is a party, except for any such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to authorizations, approvals, actions, notices or for the account of such Borrower, each of which Governmental Approvals will filings as have already been made or obtained and will be are in full force and effect on or prior effect.
(d) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by such Borrower and its Guarantor, if any, party thereto. This Agreement is, and each other Loan Document to which it is a party when delivered hereunder will be, the date of any Extension of Credit to or for the account legal, valid and binding obligation of such BorrowerBorrower and its Guarantor, if any, enforceable against it in accordance with their respective terms.
(e) Except for the Transaction or as disclosed in writing to the Agent prior to the Closing Date, since December 31, 2004, there has been no Material Adverse Change.
(f) There is no pending or overtly threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, proceeding affecting such Borrower or Borrower, any of its Significant Subsidiaries or its Guarantor, if any, before any court, governmental agency or arbitrator that is could reasonably likely be expected to have a Material Adverse Effectadversely affect the legality, except as disclosed in validity or enforceability of any Loan Document, or the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results consummation of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertransactions contemplated hereby.
(g) No Such Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(h) Following application of the proceeds of each Advance, not more than 25% of the value of the assets (either of the Borrowers only or of the Borrowers and their Subsidiaries, taken as a whole) subject to the provisions of Section 5.02(a) will be margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System).
(i) All written statement, information (other than financial information, reportprojections, financial statement, exhibit or schedule estimates and other forward looking statements) heretofore furnished by or on behalf of such Borrower and its Guarantor, if any, to the Administrative Agent, any Lender Lenders for purposes of or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein any transaction contemplated hereby, taken as a whole, in each case as such written information may be amended, modified or delivered pursuant hereto containedsupplemented by it from time to time, contains, or will contain any is correct in all material misstatement of fact or intentionally omitted, omits, or will respects and does not omit to state any material fact or any fact necessary to make the statements therein, contained therein not materially misleading in the light of the circumstances under which they were, are, or will be such statements were made, not misleading.
(hj) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rulesnot an “investment company”, regulations and orders or a company “controlled” by an “investment company”, within the meaning of any governmental authority applicable to itthe Investment Company Act of 1940, as amended.
(ik) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 All of the Internal Revenue Code) that could reasonably be expected Advances and other obligations owing by such Borrower to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA the Agent and the Internal Revenue Code. Such Borrower other Lenders and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plansunder the Credit Agreement and the Notes, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established rank pari passu or maintained, or senior to which contributions are or have been made or should be made according to the terms of the plan by any Borrower or any all of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclesenior unsecured indebtedness for money borrowed.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as to itself and its Subsidiaries as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of Delaware and has all corporate powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals the failure to have which it is incorporated could not reasonably be expected to have a material adverse effect on the business, assets, condition or otherwise organized, and each Significant Subsidiary operation of such Borrower and its Subsidiaries taken as a whole. Each Subsidiary of each Borrower is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, except where the jurisdiction failure to be so organized, existing and in good standing could not reasonably be expected to have a material adverse effect on the business, assets, condition or operations of such Borrower and its Subsidiaries taken as a whole. Each Subsidiary of a Borrower has all corporate powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals the failure to have which it is incorporated could not reasonably be expected to have a material adverse effect on the business, assets, condition or otherwise organizedoperation of such Borrower and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by such each Borrower of this Agreement, Agreement and the Notes and the consummation of the transactions contemplated hereby, by this Agreement are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, laws or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower and will not result in or require the creation or imposition of any Lien prohibited by this Agreement. At the time of each borrowing of any Advance by a Borrower, such borrowing and the use of the proceeds of such Advance will be within such Borrower's corporate powexx, xxxx xxxe been duly authorized by all necessary corporate action, will not contravene (i) such Borrower's charter or by-laws or (ii) law or any contractual restriction binding on or affecting such Borrower and will not result in or require the creation or imposition of its propertiesany Lien prohibited by this Agreement.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this Agreement or the Notes or the consummation of the transactions contemplated by this Agreement. At the time of each borrowing of any Advance by a Borrower, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body will be required for such borrowing or the use of the proceeds of such Advance.
(d) This Agreement has been duly executed and delivered by each Borrower. This Agreement is the legal, valid and binding obligation of each Borrower enforceable against each Borrower in accordance with its terms, except for as such Governmental Approvals that enforceability may be required to be obtained limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by general principles of equity. The A Notes of each Borrower are, and when executed the B Notes of such Borrower will be, the legal, valid and binding obligations of such Borrower enforceable against such Borrower in connection accordance with their respective terms, except as such enforceability may be limited by any Extension applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by general principles of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerequity.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(fi) The consolidated Consolidated and consolidating balance sheet sheets of each Borrower TWC and its Consolidated Subsidiaries as at December 31, 20071995, and the related consolidated Consolidated and consolidating statements of income and cash flows of such Borrower TWC and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each LenderBank, and the Consolidated and consolidating balance sheets of TWC and its Subsidiaries as at September 30, 1996 and the related Consolidated and consolidating statements of income and cash flows of TWC and its Subsidiaries for the nine months then ended, duly certified by an authorized financial officer of TWC, copies of which have been furnished to each Bank, fairly present present, subject, in the consolidated case of such balance sheets as at September 30, 1996 and such statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated and consolidating financial condition of such Borrower TWC and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated and consolidating results of the operations of such Borrower TWC and its Consolidated Subsidiaries for the period year and nine month period, respectively, ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. Since December 31September 30, 20071996, there has been no Material Adverse Change material adverse change in the condition or operations of TWC or its Subsidiaries.
(ii) The consolidating balance sheets of TWC and its Subsidiaries as at December 31, 1995 and September 30, 1996 referred to in Section 4.01(e)(i), and the related consolidating statements of income and cash flows of TWC and its Subsidiaries for the fiscal year and nine months, respectively, then ended referred to in Section 4.01(e)(i), to the extent such balance sheets and statements pertain to NWP, fairly present (subject, in the case of such balance sheet as at September 30, 1996 and such statements of income and cash flows for the nine months then ended, to year-end audit adjustments) the Consolidated financial condition of NWP and its Subsidiaries as at such dates and the Consolidated results of operations of NWP and its Subsidiaries for the year and nine month period, respectively, ended on such dates, all in accordance with respect generally accepted accounting principles consistently applied. Since September 30, 1996, there has been no material adverse change in the condition or operations of NWP or its Subsidiaries.
(iii) The Consolidated balance sheet of WPL and its Subsidiaries as at December 31, 1995, and the related Consolidated statement of income and cash flows of WPL and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, and the Consolidated balance sheet of WPL and its Subsidiaries as at September 30, 1996 and the related Consolidated statement of income and cash flows of WPL and its Subsidiaries for the nine months then ended, duly certified by an authorized financial officer of WPL, copies of which have been furnished to each Bank, fairly present, subject, in the case of such balance sheet as at September 30, 1996 and such statement of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of WPL and its Subsidiaries as at such dates and the Consolidated results of operations of WPL and its Subsidiaries for the year and nine month period, respectively, ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since September 30, 1996, there has been no material adverse change in the condition or operations of WPL or its Subsidiaries.
(iv) The Consolidated balance sheet of TGPL and its Subsidiaries as at December 31, 1995, and the related Consolidated statement of income and cash flows of TGPL and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, and the Consolidated balance sheet of TGPL and its Subsidiaries as at September 30, 1996 and the related Consolidated statement of income and cash flows of TGPL and its Subsidiaries for the nine months then ended, duly certified by an authorized financial officer of TGPL, copies of which have been furnished to each Bank, fairly present, subject, in the case of such balance sheet as at September 30, 1996 and such statement of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of TGPL and its Subsidiaries as at such dates and the Consolidated results of operations of TGPL and its Subsidiaries for the year and nine month period, respectively, ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since September 30, 1996, there has been no material adverse change in the condition or operations of TGPL or its Subsidiaries.
(v) The Consolidated balance sheet of TGT and its Subsidiaries as at December 31, 1995, and the related Consolidated statement of income and cash flows of TGT and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, and the Consolidated balance sheet of TGT and its Subsidiaries as at September 30, 1996, and the related Consolidated statement of income and cash flows of
(vi) The Consolidated balance sheet of WHD and its Subsidiaries as at December 31, 1995, and the related Consolidated statement of income and cash flows of WHD and its Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Bank, and the Consolidated balance sheet of WHD and its Subsidiaries as at September 30, 1996 and the related Consolidated statement of income and cash flows of WHD and its Subsidiaries for the nine months then ended, duly certified by an authorized financial officer of WHD, copies of which have been furnished to each Bank, fairly present, subject, in the case of such balance sheet as at September 30, 1996 and such statement of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of WHD and its Subsidiaries as at such dates and the Consolidated results of operations of WHD and its Subsidiaries for the year and nine month period, respectively, ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since September 30, 1996, there has been no material adverse change in the condition or operations of WHD or its Subsidiaries.
(f) Except as set forth in the Public Filings or as otherwise disclosed in writing by a Borrower to the Banks and the Agent after the date hereof and approved by the Majority Banks, there is, as to each Borrower, no pending or, to the knowledge of such Borrower, threatened action or proceeding affecting such Borrower or any Subsidiary of such Borrower before any court, governmental agency or arbitrator, which could reasonably be expected to materially and adversely affect the financial condition or operations of such Borrower and its Subsidiaries taken as a whole or which purports to affect the legality, validity, binding effect or enforceability of this Agreement or any Note.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf proceeds of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or Advance will be made, used for any purpose or in any manner not misleadingpermitted by Section 5.02(k).
(h) Except as disclosed No Borrower is engaged in the Disclosure Documentsbusiness of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any such margin stock (other than purchases of common stock expressly permitted by Section 5.02(k)) or to extend credit to others for the purpose of purchasing or carrying any such margin stock. Following the application of the proceeds of each Advance, not more than 25% of the value of the assets of any Borrower will be represented by such margin stock and not more than 25% of the value of the assets of any Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 will be made according to the terms of the plan represented by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclemargin stock.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants to each Lender and the Administrative Agent as of the date hereof and as of the Alcan Amendment Effective Date as follows:
(a) Such Each Borrower is a corporation has the legal power and authority to execute and deliver this Amendment and the officers of each Borrower executing this Amendment have been duly organized, validly existing authorized to execute and in good standing under deliver the laws of the jurisdiction in which it is incorporated or otherwise organized, same and each Significant Subsidiary of bind such Borrower is duly organized, validly existing and in good standing under with respect to the laws of the jurisdiction in which it is incorporated or otherwise organizedprovisions hereof.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement Amendment has been duly executed and delivered by such Borrower. each Loan Party that is a party hereto.
(c) This Amendment and the Credit Agreement is as modified hereby (the “Amended Agreement”) each constitutes the legal, valid and binding obligation obligations of such each Borrower and each other Loan Party, enforceable against such Borrower it in accordance with its terms, their terms (except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance insolvency or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally).
(d) No authorization The execution and delivery by each Loan Party of this Amendment, the performance by each Loan Party of its obligations under the Amended Agreement and under the other Loan Documents to which they are parties and the consummation of the transactions contemplated by the Amended Agreement and the other Loan Documents: (i) do not require any consent or approval or other action byof, and no notice to registration or filing with, any governmental authority or regulatory body notice to or any other third party is required for the due executionaction by or in respect of, delivery and performance by such Borrower of this Agreementany Governmental Authority or any other Person, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower(A) those consents, each of which Governmental Approvals will approvals, registrations, filings, notices and other actions as have been obtained or made and will be are in full force and effect on or prior and (B) for filings necessary to perfect Liens created pursuant to the date Loan Documents, (ii) will not violate any material Requirement of Law applicable to any Loan Party, (iii) will not violate or result in a default under any material indenture, agreement or other instrument binding upon any Loan Party or any of its Subsidiaries or the assets of any Extension Loan Party or any of Credit its Subsidiaries, or give rise to a right thereunder to require any payment to be made by any Loan Party or for any of its Subsidiaries, (iv) will not contravene the account terms of such Borrowerany certificates of incorporation, by-laws or other organizational or governing documents of any Loan Party, and (v) will not result, or require, the creation or imposition of any Lien on any asset of any Loan Party, except Liens created pursuant to the Loan Documents and Permitted Liens.
(e) There is no pending or threatened actionEach Borrower and each other Loan Party hereby reaffirms all covenants, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed representations and warranties made by it in the Disclosure DocumentsCredit Agreement and the other Loan Documents and agrees and confirms that all such representations and warranties are true and correct in all material respects as of the date of this Amendment (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date), and that any representation or warranty which is subject to any materiality qualifier is true and correct in all respects.
(f) The consolidated balance sheet Each Borrower has caused to be conducted a thorough review of the terms of this Amendment, the Credit Agreement and the other Loan Documents and each Borrower Borrower’s and its Consolidated Subsidiaries Subsidiaries’ operations since the Effective Date and, as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower date hereof and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light as of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower Alcan Amendment Effective Date and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 after giving effect to the terms hereof, no Default or Event of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which Default has occurred and is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclecontinuing.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery delivery, and performance by such Borrower of this Agreement, Agreement and the New Note and the consummation of the transactions contemplated hereby, are within thereby (i) do not contravene the organizational documents of such Borrower’s corporate powers, (ii) have been duly authorized by all necessary actionlimited liability company or partnership action of such Borrower, and do not contravene (iiii) are within such Borrower’s certificate of incorporation limited liability company or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiespartnership powers.
(cb) This Agreement has been duly executed and delivered by such Borrower. This Agreement is Borrower and constitutes the legal, valid valid, and binding obligation of such Borrower Borrower, enforceable against such Borrower in accordance with its the Agreement’s terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium, or similar laws at the time in effect affecting the rights of creditors generally and subject to the availability of equitable remedies.
(c) The execution, delivery, and performance by such 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 laws agreement to which such Borrower is a party or any other material contract or agreement to which such Borrower is a party, (ii) do not violate any law or regulation binding on or affecting the enforcement of creditors’ rights in generalsuch Borrower, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at lawiii) and subject to requirements of reasonablenessdo not require any authorization, good faith and fair dealing.
(d) No authorization or approval 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 third party is required for the due executionNew Bank Agreements and Revolving Loan Commitment Increase Agreements, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior compliance with the limitation set forth in clause (a) of the proviso to the date first sentence of any Extension Section 2.13 of the Credit to or for the account of such BorrowerAgreement.
(e) There is no pending or threatened action[No Revolving Loans are outstanding.] [Arrangements satisfactory to the Administrative Agent have been made to prepay all outstanding Revolving Loans, suit, investigation, litigation or proceeding, including, without limitation, together with accrued interest thereon and any Environmental Action, affecting such Borrower or any amounts payable pursuant to Section 2.6 of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure DocumentsCredit Agreement.]
(f) The consolidated balance sheet resolutions duly adopted by the respective boards of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows directors or other governing body of such Borrower and its Consolidated Subsidiaries for the fiscal year then endedGuarantors on [date], accompanied by an opinion of Deloitte & Touche LLPare sufficient to authorize this Agreement, an independent registered public accounting firmthe New Note, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower Guaranty thereof and its Consolidated Subsidiaries for the period ended on such datesecurity therefor, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such Borrower has not incurredapplicable, 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. Such Borrower such resolutions remain in full force and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleeffect.]
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as of the Effective Date, and thereafter as of each applicable date (and to the extent) specified in Section 3.02(b), as follows:
(a) Such Each Borrower (i) is a corporation duly organizedorganized or duly incorporated, as applicable, and validly existing under the laws of its jurisdiction of incorporation or organization, as applicable, and (ii) is duly qualified and in good standing under the laws of the its jurisdiction in which it is incorporated of incorporation or otherwise organizedorganization, as applicable, and each Significant Subsidiary of such Borrower is duly organizedthe respective jurisdictions in which its principal operating facilities are located, validly existing and except, with respect to this clause (ii) only, in jurisdictions where the failure to be so qualified or in good standing under the laws of the jurisdiction would not reasonably be expected to result in which it is incorporated or otherwise organizeda Material Adverse Effect.
(b) The execution, delivery and performance by such each Borrower of this Agreement, Agreement and the consummation of the transactions contemplated hereby, other Loan Documents are (i) within such Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and (ii) do not contravene (ix) such Borrower’s certificate of incorporation charter, by‑laws or by-laws, (ii) law binding or affecting such Borrower other constitutive documents or (iiiy) except to the extent such contravention would not (individually or in the aggregate) reasonably be expected to have a Material Adverse Effect, law or any material contractual restriction binding on or affecting such Borrower or, to the knowledge of the Company or such Borrower, any of its propertiesother contractual restriction binding on such Borrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this AgreementAgreement or the other Loan Documents.
(d) This Agreement and the Notes (when delivered hereunder) have been duly executed and delivered and constitute the legal, except for such Governmental Approvals that may be required to be obtained by valid and binding obligations of each Borrower enforceable against such Borrower in connection accordance with any Extension of Credit their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on limiting creditors’ rights generally or prior by equitable principles relating to the date of any Extension of Credit to or for the account of such Borrowerenforceability.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(fi) The consolidated balance sheet sheets of each Borrower the Company and its Consolidated Subsidiaries as at December 31September 30, 20072022, and the related consolidated statements of income and cash flows of such Borrower the Company and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lenderthe Administrative Agent, fairly present the consolidated financial condition of such Borrower the Company and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower the Company and its Consolidated Subsidiaries for the period fiscal year ended on such date, all in accordance with generally accepted accounting principles GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers hereby represents and warrants to the Lender, which representations and warranties shall survive the execution and delivery of this Amendment, that on and as followsof the date hereof and after giving effect to this Amendment:
(a) Such Borrower is a corporation duly organizedAs to each Borrower, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery delivery, and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, Amendment have been duly authorized by all necessary actionaction on the part of such Borrower.
(b) As to each Borrower, the execution, delivery, and do performance by such Borrower of this Amendment does not contravene and will not (i) such violate any provision of federal, state, or local law or regulation applicable to any Borrower’s certificate , the Governing Documents of incorporation any Borrower, or by-lawsany order, judgment, or decree of any court or other Governmental Authority binding on any Borrower, (ii) law binding conflict with, result in a breach of, or affecting such Borrower constitute (with due notice or lapse of time or both) a default under any material contractual obligation of any Borrower, (iii) result in or require the creation or imposition of any contractual restriction binding on Lien of any nature whatsoever upon any properties or affecting such Borrower assets of Borrower, other than Permitted Liens, or (iv) require any approval of any Borrower's interest holders or any approval or consent of its propertiesany Person under any material contractual obligation of any Borrower, other than consents or approvals that have been obtained and that are still in force and effect.
(c) This Agreement has been duly As to each Borrower, this Amendment and all other documents contemplated hereby, when executed and delivered by such Borrower. This Agreement is Borrower will be the legal, legally valid and binding obligation obligations of such Borrower Borrower, enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof enforcement may be limited by equitable principles or by bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium, or other similar laws affecting the enforcement of relating to or limiting creditors’ ' rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(d) No authorization or approval or other action by, The representations 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 such Borrower warranties of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of the Borrowers set forth in the Credit Agreement and in the Loan Documents to which Governmental Approvals will have been obtained it is a party are true, correct and will be in full force complete on and effect on or prior as of the date hereof; provided, that the references to the date of any Extension of Credit Agreement therein shall be deemed to or for include the account of such BorrowerCredit Agreement as amended by this Amendment.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results Each of the operations of Borrowers acknowledges that the Lender is specifically relying upon the representations, warranties and agreements contained in this Amendment and that such Borrower representations, warranties and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower agreements constitute a material inducement to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of entering into this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleadingAmendment.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants to the Lenders as follows:
(a) Such Borrower is a corporation duly organizedthe execution and delivery of this Amendment, validly existing and in good standing under the laws performance of the jurisdiction in which it is incorporated or otherwise organizedAmended MSD Secured Note, and each Significant Subsidiary of such Borrower is duly organizedthe Amended GA Secured Note, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Amended Intercreditor Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, DTV Guaranty (i) have been duly authorized by all proper and necessary action, and do not contravene (i) action of the board of directors of such Borrower’s certificate of incorporation or by-laws, ; and (ii) law binding do not and will not conflict with (x) any material provision of Law or affecting regulatory requirements to which such Borrower is subject, or (y) any charter, bylaw, stock provision, partnership agreement or other document pertaining to the organization, power or authority of such Borrower;
(b) there is no material outstanding decree, decision, judgment or order that has been issued by any court, Governmental Authority, agency or arbitration authority against such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.FCC Licenses;
(c) This Agreement has been duly executed (x) no Borrower is in default under or with respect to any Contractual Obligation of such Borrower that could, either individually or in the aggregate reasonably be expected to result in a Material Adverse Change; or (y) no consent or approval of any public authority or any other third party is required as a condition to the validity of this Amendment;
(d) each of this Amendment, the Amended MSD Secured Note, the Amended GA Secured Note, the Amended Intercreditor Agreement, each Note Document (as defined in the Amended MSD Secured Note), and delivered by such Borrower. This Agreement each Note Document (as defined in the Amended GA Secured Note) and the DTV Guaranty is the legal, valid and legally binding obligation of such Borrower Borrower, enforceable against such Borrower in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.;
(e) There is no pending the representations and warranties contained in Section 7.3 of the Amended MSD Secured Note and in Section 7.3 of the Amended GA Secured Note are true, correct and complete in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed modified by materiality in the Disclosure Documents.text thereof) on and as of the date of this Amendment (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date);
(f) The consolidated balance sheet of each Borrower is solvent and is not insolvent (as defined in any applicable bankruptcy or insolvency laws) after giving effect to the transactions contemplated by the Note Documents. No Borrower has incurred or intended to incur debts beyond its Consolidated Subsidiaries ability to pay such debts as at December 31they become due. No Borrower intends to hinder, 2007delay or defraud it creditors by or through the execution and delivery of, and or performance of its obligations under the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of Note Documents to which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.it is a party; and
(g) No written statement, information, report, financial statement, exhibit no Default or schedule furnished by or on behalf Event of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleadingDefault has occurred and is continuing.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Samples: Secured Notes and Intercreditor Agreement Amendment (INNOVATE Corp.)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary state of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits organization.
(b) The execution, delivery and performance by such Borrower of this AgreementAgreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, laws or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required Agreement or the Notes to be obtained delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by such Borrower. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of such Borrower enforceable against such Borrower in connection accordance with any Extension their respective terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained creditors' rights generally and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerby general equitable principles.
(e) The Consolidated balance sheet of the Company and its Subsidiaries as at December 31, 2001, and the related Consolidated statements of income and cash flows of the Company and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Xxxxxx Xxxxxxxx LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Company and its Subsidiaries as at such date and the Consolidated results of the operations of the Company and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2001, there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower the Company or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) would be reasonably likely to have a Material Adverse EffectEffect (other than the Disclosed Litigation) or (ii) purports to affect the legality, except as disclosed in validity or enforceability of this Agreement or any Note or the Disclosure Documents.
(f) The consolidated balance sheet consummation of each Borrower and its Consolidated Subsidiaries as at December 31, 2007the transactions contemplated hereby, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borroweradverse change in the status, or financial effect on the Company or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto.
(g) No written statement, information, report, financial statement, exhibit or schedule report furnished by the Company or on behalf any of such Borrower its Subsidiaries to the Administrative Agent, Agent or to any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, containsof, or will contain compliance with, the Loan Documents contained any material misstatement of fact or intentionally omitted, omits, or will omit omitted to state a material fact or any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, contained therein not misleading.
(h) Except as disclosed in the Disclosure Documents, such Each Borrower and each Significant Subsidiary of such Borrower is its Subsidiaries are in material compliance with all laws Regulations T, U and X. Margin stock (including ERISA as defined in Regulation U) constitutes less than 25% of the value of those assets of the Borrowers and Environmental Laws) rulestheir Subsidiaries which are subject to any limitation on sale, regulations and orders of any governmental authority applicable to itpledge, or other restriction hereunder.
(i) No accumulated funding deficiency (as defined in Section 302 Neither any Borrower nor any of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have its Subsidiaries is a Material Adverse Effect, whether or not waived, exists with respect party to any Plan. Such Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV of ERISA with respect agreement or instrument or subject to any Multiemployer Plan that charter or other corporate restriction which could reasonably be expected to have a Material Adverse Effect. Such Neither any Borrower and each nor any of its ERISA Affiliates Subsidiaries is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement to which it is a party, which default could reasonably be expected to have a Material Adverse Effect.
(j) The Borrowers and their Subsidiaries have complied with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective property, except for any failure to comply with any of the foregoing which could not reasonably be expected to have a Material Adverse Effect.
(k) On the date of this Agreement, the Borrowers and their Subsidiaries have good title, free of all Liens other than those permitted by Section 5.02(a) to all of the property and assets reflected in all material respects with ERISA the Company's most recent consolidated financial statements provided to the Agent as owned by the Borrowers and the Internal Revenue Code. Such their Subsidiaries.
(l) Each Borrower and each of its Subsidiaries have complied in owns or possesses all material respects patents, trademarks, trade names, service marks, copyright, licenses and rights with foreign law applicable respect to the foregoing necessary for the future conduct of its Foreign Plansbusiness, if any. As used hereinwithout any known material conflict with the rights of others.
(m) In the ordinary course of its business, the term “Plan” shall mean an “employee pension benefit plan” (as defined officers of the Company consider the effect of Environmental Laws on the business of the Borrowers, in Section 3 the course of ERISA) which is they identify and has been established or maintained, or to which contributions are or have been made or should be made according evaluate potential risks and liabilities accruing to the terms Borrowers and their Subsidiaries due to Environmental Laws. On the basis of this consideration, the plan by Company has concluded that Environmental laws cannot reasonably be expected to have a Material Adverse Effect. Except as disclosed on Schedule 3.01(b) hereto, neither any Borrower or nor any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean Subsidiaries has received any Plan notice to the effect that its operations are not in material compliance with any of the requirements of applicable Environmental Laws or are the subject of any foreign or domestic, federal, state or local investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which non-compliance or remedial action could reasonably be expected to have a Material Adverse Effect.
(n) Neither any Borrower nor any of its Subsidiaries is an "investment company" or a company "controlled" by and "investment company" or an "affiliated person" thereof or an "affiliated person" of such affiliated person, in each case within the meaning of the Investment Company Act of 1940, as amended.
(o) Neither any Borrower nor any of its Subsidiaries is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) "holding company" or a "subsidiary company" of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensationa "holding company", or other employee benefit planan "affiliate" of a "holding company" or of a "subsidiary company" of a "holding company", program or arrangement maintained by any entity subsidiary whichwithin the meaning of the Public Utility Holding Company Act of 1935, under applicable local foreign law, is required to be funded through a trust or other funding vehicleas amended.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary State of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits incorporation.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and the other Loan Documents to be delivered by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation charter or by-laws, laws or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been been, and each of the other Loan Documents to be delivered by it when delivered hereunder will have been, duly executed and delivered by such each Borrower. This Agreement is is, and each of the other Loan Documents when delivered hereunder will be, the legal, valid and binding obligation of such each Borrower party thereto enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this Agreement, except for such Governmental Approvals that may be required Agreement or the other Loan Documents to be obtained delivered by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerit.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental ActionClaim, affecting such Borrower the Holding Company or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) would be reasonably likely to have a Material Adverse EffectEffect or (ii) purports to affect the legality, except as disclosed in validity or enforceability of this Agreement or any Note or the Disclosure Documents.consummation of the transactions contemplated hereby. NAI-1502274953v9
(f1) The consolidated Consolidated balance sheet of each Borrower the Holding Company and its Consolidated Subsidiaries as at December May 31, 20072016, and the related consolidated Consolidated statements of income and cash flows of such Borrower the Holding Company and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte Ernst & Touche Young LLP, an independent registered public accounting firmaccountants, the consolidating balance sheet of the Holding Company and its Subsidiaries as at May 31, 2016, and the related consolidating statements of income and cash flows of the Holding Company and its Subsidiaries for the fiscal year then ended, duly certified by the chief financial officer of the Holding Company, and the Consolidated and consolidating balance sheet of the Holding Company and its Subsidiaries as at August 31, 2016, and the related Consolidated and consolidating statements of income and cash flows of the Holding Company and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Holding Company, copies of each of which have been furnished to each Lender, fairly present present, subject, in the consolidated case of said balance sheet as at August 31, 2016, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of such Borrower the Holding Company and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of such Borrower the Holding Company and its Consolidated Subsidiaries for the period periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. .
(i) Since December May 31, 20072016, there has been no Material Adverse Change with respect to such BorrowerChange.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they wereBorrowers and their Subsidiaries has good, aremarketable fee or leasehold title (as applicable) or ownership interest to all of the material assets and properties of the Borrowers and their Subsidiaries, or will be madefree and clear of all Liens, not misleadingother than Liens permitted by the Loan Documents.
(h) Except as disclosed in the Disclosure Documents, such Borrower The operations and properties of each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied comply in all material respects with foreign law all applicable to its Foreign PlansEnvironmental Laws, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and all past non-compliance with such Environmental Laws has been established resolved without material ongoing obligations or maintainedcosts, or and no circumstances exist that could reasonably be likely to which contributions are or have been made or should be made according to (i) form the terms basis of the plan by any an Environmental Claim against either Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean Subsidiaries or any Plan which of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect.
(i) Set forth on Schedule 4.01(i) hereto is a “multiemployer plan” complete and accurate list of all Subsidiaries of each of the Borrowers as of the date hereof, showing (as to each such term Subsidiary) the jurisdiction of its incorporation. All of the outstanding capital stock and other ownership interests (other than directors qualifying shares) in each of the Borrower’s Subsidiaries has been validly issued, are fully paid and non-assessable and are owned by such Borrower or one or more of its Subsidiaries free and clear of all Liens and, as of the date hereof, free of any outstanding options, warrants, rights of conversion or purchase or similar rights.
(j) Each of the outstanding securities issued by the Holding Company was duly authorized and validly issued, is defined fully paid and non-assessable, and is not and will not be subject to any preemptive or similar right or restriction. Each of those outstanding securities was acquired from the issuer in Section 4001(a)(3a transaction in compliance with the Securities Act of 1933, as amended, and other applicable laws.
(k) No Borrower is engaged in the business of ERISAextending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock in violation of Regulation U issued by the Board of Governors of the Federal Reserve System or to extend credit to others for the purpose of purchasing or carrying any margin stock. The term NAI-1502274953v9
(l) No Borrower is an “Foreign Plan” shall mean any pension, profit-sharing, deferred compensationinvestment company”, or other employee benefit plana company “controlled” by an “investment company”, program within the meaning of the Investment Company Act of 1940, as amended.
(m) No Borrower, nor any Subsidiary of any Borrower, nor, to the knowledge of the Borrowers and their Subsidiaries, any director, officer, employee, agent, affiliate or arrangement maintained representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity subsidiary whichthat is (i) currently the subject or target of any Sanctions, under applicable local foreign law(ii) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction.
(n) The Borrowers and their Subsidiaries have conducted their business in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Xxxxxxx Xxx 0000 and other similar anti-corruption legislation in other jurisdictions, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
(o) No Borrower is required to be funded through a trust or other funding vehiclean EEA Financial Institution.
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower Each Loan Party and each of its Subsidiaries (i) is a corporation duly organizedorganized or formed, validly existing and and, to the extent such concept applies, in good standing under the laws of the jurisdiction in which it is incorporated of its incorporation or otherwise organizedformation, and each Significant Subsidiary of such Borrower (ii) is duly organized, validly existing qualified and in good standing under the laws of the as a foreign corporation or other entity in each other jurisdiction in which it is incorporated owns or otherwise organizedleases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted, except where the failure to have any license, permit or other approval would not be reasonably likely to have a Material Adverse Effect. All of the outstanding Equity Interests in each Borrower (other than the Parent) have been validly issued, are fully paid and non-assessable and (except for any Preferred Securities issued after the date of this Agreement) are owned, directly or indirectly, by the Parent free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party.
(c) The execution, delivery and performance by such Borrower each Loan Party of this Agreement, each Loan Document to which it is or is to be a party and the consummation of the transactions contemplated herebyby the Loan Documents, are within such Borrower’s Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) contravene such Borrower’s certificate of incorporation or by-lawsLoan Party's constitutional documents, (ii) law binding violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or affecting such Borrower or award, (iii) conflict with or result in the breach of, or constitute a default under, any contractual restriction contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Borrower any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its properties.
(c) This Agreement has been duly executed and delivered by Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such Borrower. This Agreement is the legallaw, valid and binding obligation rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Borrower enforceable against such Borrower in accordance with its termscontract, except as the enforceability thereof may be limited by bankruptcyloan agreement, insolvencyindenture, fraudulent conveyance mortgage, deed of trust, lease or other similar laws affecting instrument, the enforcement violation or breach of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject which could be reasonably likely to general principles of equity (regardless of whether such remedy is sought in have a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingMaterial Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by such Borrower any Loan Party of this Agreementany Loan Document to which it is or is to be a party or the other transactions contemplated by the Loan Documents (other than the Acquisition), or (ii) the exercise by any Agent or any Lender of its rights under the Loan Documents, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrowerauthorizations, each of approvals, actions, notices and filings which Governmental Approvals will have been obtained duly obtained, taken, given or made and will be are in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowereffect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms.
(f) There is no pending or threatened action, suit, investigation, litigation or proceedingproceeding affecting any Loan Party or any of its Subsidiaries, including, without limitation, including any Environmental Action, affecting such Borrower pending or any of its Significant Subsidiaries threatened before any court, governmental agency or arbitrator that is (i) could be reasonably likely to have a Material Adverse EffectEffect or (ii) would reasonably be expected to affect the legality, except as disclosed in validity or enforceability of any Loan Document or the Disclosure transactions contemplated by the Loan Documents.
(fg) The consolidated Consolidated balance sheet sheets of each Borrower the Parent and its Consolidated Subsidiaries as at December 31September 30, 20071998, and the related consolidated Consolidated statements of income and of cash flows of such Borrower the Parent and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of Deloitte & Touche PricewaterhouseCoopers LLP, an independent registered public accounting firmaccountants, and the Consolidated balance sheets of the Parent and its Subsidiaries as at December 31, 1998, and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the three months then ended, duly certified by the Chief Financial Officer of the Parent, copies of each of which have been furnished to each Lender, fairly present present, subject, in the consolidated case of said balance sheet as at December 31, 1998, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of such Borrower the Parent and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of such Borrower the Parent and its Consolidated Subsidiaries for the period periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. Since applied on a consistent basis (subject, in the case of the December 31, 20071998 balance sheet and statements, to the absence of footnotes), and since December 31, 1998, there has been no Material Adverse Change with respect to such BorrowerChange.
(gh) No The Consolidated forecasted balance sheet, statements of income and statements of cash flows of the Parent and its Subsidiaries contained in the Information Memorandum were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Parent's best estimate of its future financial performance.
(i) Neither the Information Memorandum nor any other written statement, information, report, financial statement, exhibit or schedule report furnished by or on behalf of such Borrower any Loan Party to the Administrative Agent, any Agent or any Lender or any LC Issuing Bank in connection with the negotiation and syndication of the Loan Documents or negotiation pursuant to the terms of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain the Loan Documents contained any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit omitted to state any a material fact necessary to make the statements thereinmade therein not misleading as at the date it was dated (or if not dated, in the light of the circumstances under which they were, are, or will be made, not misleadingso delivered).
(hj) Except as disclosed None of the Borrowers is engaged in the Disclosure Documentsbusiness of extending credit for the purpose of purchasing or carrying Margin Stock, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders no proceeds of any governmental authority applicable Advance or drawings under any Letter of Credit will be used to itpurchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
(k) Neither any Loan Party nor any of its Subsidiaries is an "investment company", or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that is reasonably likely to have a Material Adverse Effect.
(m) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(n) Except to the extent that any and all events and conditions under clauses (i) No accumulated funding deficiency through (as defined vi) below of this paragraph (n) in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could aggregate are not reasonably be expected to have a Material Adverse Effect, whether or not waived(i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Pension Plan, exists copies of which have been filed with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower Service, is complete and each accurate and fairly presents the funding status of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Planssuch Pension Plan, if any. As used herein, and since the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 date of ERISA) which is and such Schedule B there 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as no material adverse change in such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclestatus.
Appears in 1 contract
Samples: Credit Agreement (Ace LTD)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower It is a corporation Person duly organized, validly existing and in good standing under the laws of the jurisdiction in which it of its formation (to the extent such concept is incorporated or otherwise organized, and each Significant Subsidiary of recognized under such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedgenerally).
(b) The execution, delivery and performance by such Borrower it of this Agreementeach Loan Document to which it is a party and to be delivered by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate or other powers, have been duly authorized by all necessary corporate or other action, and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, bylaws or comparable organizational documents or (ii) any applicable law binding or affecting such Borrower or (iii) any contractual restriction in any material contract or, to the knowledge of the chief financial officer of such Borrower, any other contract the breach of which would limit the ability of such Borrower to perform its obligations under any Loan Document, binding on or affecting such Borrower or any of Borrower. With respect to Noveon Europe, the entry into the Loan Documents and the transactions contemplated thereby is in its propertiescorporate interest.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required any Loan Document to which it is a party and to be obtained delivered by such Borrower in connection with any Extension of Credit to it or for the account consummation of such Borrowerthe transactions contemplated hereby, each of which Governmental Approvals will other than authorizations, approvals, actions, notices or filings (i) that have been obtained duly obtained, taken, given or made and will be are in full force and effect on or prior (ii) as to which the failure to obtain, take, give or make would not reasonably be likely to result in a Material Adverse Effect.
(d) This Agreement has been, and each of the other Loan Documents to be delivered by it when delivered hereunder will have been, duly executed and delivered by it. This Agreement is, and the other Loan Documents when delivered hereunder will be, its legal, valid and binding obligation enforceable against it in accordance with their respective terms, except to the date extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors' rights and by equitable principles (regardless of any Extension of Credit to whether enforcement is sought in equity or for the account of such Borrowerlaw).
(e) There is no pending or or, to such Borrower's knowledge, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) would be reasonably likely to have a Material Adverse EffectEffect (other than the Disclosed Litigation) or (ii) purports to affect the legality, except as disclosed validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the Disclosure Documentsstatus, or financial effect on such Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, Any information, report, financial statement, exhibit or schedule report that has been or will hereafter be furnished by or on behalf of such Borrower to the Administrative Agent, Agent or any Lender or any LC Issuing Bank in connection with the negotiation and syndication or negotiation of this Agreement or included herein or delivered pursuant hereto containedto the terms of this Agreement is and will be when furnished, containstaken as a whole, or complete and correct in all material respects and does not and will not, when furnished, contain any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit to state any a material fact necessary in order to make the statements therein, contained therein not misleading in the light of the circumstances under which they weresuch statements were or are made.
(g) Such 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), are, or and no proceeds of any Advance will be made, not misleadingused to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rulesnot an "investment company", regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 or a company "controlled" by an "investment company", within the meaning of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse EffectInvestment Company Act of 1940, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleamended.
Appears in 1 contract
Samples: Credit Agreement (Lubrizol Corp)
Representations and Warranties of the Borrowers. Each Borrower hereby represents and warrants as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing has the power and in good standing under authority and legal right to execute and deliver this Amendment and the laws of the jurisdiction in which it is incorporated or otherwise organized, Credit Agreement (as modified hereby) and each Significant Subsidiary of such Borrower is duly organized, validly existing to perform its obligations hereunder and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) thereunder. The execution, execution and delivery and performance by such Borrower of this Agreement, Amendment and the consummation performance of its obligations hereunder and under the transactions contemplated Credit Agreement (as modified hereby, are within such Borrower’s corporate powers, ) have been duly authorized by all necessary actionproper corporate proceedings (and such authorizations have not been rescinded), and do not contravene this Amendment and the Credit Agreement (ias modified hereby) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the constitute legal, valid and binding obligation obligations of such Borrower Borrower, enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealinggenerally.
(db) No authorization or approval or other action by, Neither the execution 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 such Borrower of this AgreementAmendment, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof or of the Credit Agreement (as modified hereby) will violate (i) any Extension of Credit to law, rule, regulation, order, writ, judgment, injunction, decree or for the account of award binding on such Borrower, each (ii) such Borrower’s articles or certificate of incorporation or by-laws or other constitutive document, or (iii) the provisions of any indenture, instrument or agreement to which Governmental Approvals will have been obtained and will be in full force and effect such Borrower is a party or is subject, or by which it, or its property, is bound, or conflict with, or constitute a default under, or result in, or require, the creation or imposition of any Lien on or prior the property of such Borrower pursuant to the date of terms of, any Extension of Credit to such indenture, instrument or for the account of such Borroweragreement.
(ec) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results As of the operations of such Borrower date hereof and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 giving effect to the terms of this Amendment, (i) there exists no Default or Event of Default and (ii) the plan by any Borrower or any representations and warranties contained in Article IV of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” the Credit Agreement (as such term is defined in Section 4001(a)(3modified hereby) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleare true and correct.
Appears in 1 contract
Samples: 5 Year Revolving Credit Agreement (Masco Corp /De/)
Representations and Warranties of the Borrowers. Each Borrower Borrower, severally but not jointly, hereby represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary Each of such Borrower and its Material Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has the corporate power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is incorporated currently engaged, (iii) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or otherwise organizedoperation of property or the conduct of its business requires such qualification except any such jurisdiction where the failure to so qualify would not, in the aggregate, reasonably be expected to have a Material Adverse Effect on such Borrower and (iv) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect on such Borrower.
(b) The Such Borrower has the corporate power and authority, and the legal right, to make, deliver and perform the Financing Documents to which it is a party and to borrow hereunder and has taken all necessary corporate action to authorize the borrowings on the terms and conditions of this Agreement and to authorize the execution, delivery and performance of the Financing Documents to which it is a party. No consent or authorization of, filing with or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the borrowings hereunder or with the execution, delivery, performance, validity or enforceability of the Financing Documents to which it is a party, except for consents, authorizations or filings which have been obtained or made, as the case may be, and are in full force and effect. Each Financing Document to which such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have been duly authorized by all necessary action, and do not contravene (i) such Borrower’s certificate of incorporation or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its properties.
(c) This Agreement is a party has been duly executed and delivered by on behalf of such Borrower. This Agreement Each Financing Document to which it is the or becomes a party upon execution will constitute a legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights in general, generally and except as the availability of the remedy of specific performance is subject to by general equitable principles of equity (regardless of whether such remedy enforcement is sought in a proceeding by proceedings in equity or at law).
(c) The execution, delivery and subject performance of the Financing Documents to requirements which it is a party, the borrowings and other Extensions of reasonablenessCredit hereunder and the use of the proceeds thereof (i) will not violate any Requirement of Law or Contractual Obligation of such Borrower or of any of its Subsidiaries, good faith except for such violations, if any, as would not result in a Material Adverse Effect on such Borrower, and fair dealing(ii) 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 Requirement of Law or Contractual Obligation.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(fi) The consolidated balance sheet sheets of Cinergy, CG&E, PSI Energy, ULH&P and their respective consolidated Subsidiaries, each Borrower and its Consolidated Subsidiaries as at December 31, 2007, 2004 and the related consolidated statements of income and of cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firmended on such date, copies of each of which have heretofore been furnished to the Administrative Agent and each LenderBank, are complete and correct in all material respects and present fairly present the consolidated financial condition of such Borrower and its Consolidated consolidated Subsidiaries as at of such date dates, and the consolidated results of the their operations of such Borrower and its Consolidated Subsidiaries their consolidated cash flows for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowerfiscal year then ended.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits incorporation.
(b) The execution, delivery and performance by such Borrower of this Agreement, Amendment and the consummation of the transactions contemplated Facility Documents, as amended hereby, to which it is or is to be a party are within such Borrower’s 's corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower Borrower, or result in, or require, the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge, encumbrance or preferential arrangement of any nature upon or with respect to any of its propertiesthe properties now owned or hereafter acquired by such Borrower, or (iii) to the best of such Borrower's knowledge, any law.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legalNo authorization, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this AgreementAmendment or any of the Facility Documents, except for such Governmental Approvals that may be required as amended hereby, to which it is or is to be obtained by a party.
(d) This Amendment and each of the other Facility Documents as amended hereby, to which such Borrower is a party constitute legal, valid and binding obligations of such Borrower enforceable against such Borrower in connection accordance with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowertheir respective terms.
(e) all obligations of such Borrower under the Facility Documents, as amended hereby, and the execution, delivery and performance of this Amendment do not adversely affect the aforesaid security interests and liens of such Security Agreement.
(f) There is no pending or threatened action, suit, investigation, litigation action or proceeding, including, without limitation, any Environmental Action, proceeding affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effectarbitrator, except as disclosed in which may materially adversely affect the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the or operations of such Borrower and its Consolidated Subsidiaries for or any Subsidiary or which purport to affect the period ended on such datelegality, all validity or enforceability of this Amendment or any of the other Facility Documents, as amended hereby, except as set forth in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such BorrowerSchedule 4(f) hereto.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 After giving effect to the terms of the plan by any Borrower Amendment, no event has occurred and is continuing which constitutes a Default or any an Event of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleDefault.
Appears in 1 contract
Samples: Credit Agreement (Us Homecare Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower The Company is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it State of Kansas. Sprint Capital is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedState of Delaware.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and the Notes to be executed by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, bylaws or (ii) any law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this Agreement, except for such Governmental Approvals that may be required Agreement or the Notes to be obtained executed by it.
(d) This Agreement has been duly executed and delivered by each Borrower. This Agreement is the legal, valid and binding obligation of each Borrower enforceable against such Borrower in accordance with its terms. Each of the Notes to be executed by a Borrower when delivered hereunder will have been duly executed and delivered by such Borrower in connection with any Extension of Credit to or for and will be the account legal, valid and binding obligation of such Borrower, each of which Governmental Approvals will have been obtained and will be enforceable against such Borrower in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borroweraccordance with its terms.
(e) The Consolidated balance sheet of the Company and its Subsidiaries as at December 31, 2004, and the related Consolidated statements of income and cash flows of the Company and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Company and its Subsidiaries as at March 31, 2005, and the related Consolidated statements of income and cash flows of the Company and its Subsidiaries for the three months then ended, duly certified by the chief financial officer, chief accounting officer or treasurer of the Company, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2005, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Company and its Subsidiaries as at such dates and the Consolidated results of the operations of the Company and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2004, there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower the Company or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) could be reasonably likely to have a Material Adverse EffectEffect or (ii) purports to affect the legality, except as disclosed in validity or enforceability of this Agreement or any Note or the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results consummation of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertransactions contemplated hereby.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, is engaged in the light 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 circumstances under which they wereFederal Reserve System), are, or and no proceeds of any Advance will be made, not misleadingused to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) Except as disclosed in the Disclosure Documents, such Borrower The Company and each Significant Subsidiary of such Borrower its Subsidiaries owns, or is in material compliance with licensed to use, all laws (including ERISA trademarks, tradenames, copyrights, technology, know-how and Environmental Laws) rules, regulations and orders processes necessary for the conduct of any governmental authority applicable its business as currently conducted except for those the failure to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that own or license which could not reasonably be expected to have a Material Adverse EffectEffect (the "Intellectual Property"). No claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, whether or nor does such Borrower know of any valid basis for any such claim, except, in either case, for such claims that in the aggregate could not waived, exists with respect to any Plan. Such 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. Such Borrower The use of such Intellectual Property by the Company and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower and each of its Subsidiaries does not infringe on the rights of any Person, except for such claims and infringements that, in the aggregate, could not reasonably be expected to have complied in all material respects with foreign law applicable to its Foreign Plans, if any. As used herein, the term “Plan” shall mean a Material Adverse Effect.
(i) No Borrower is an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established or maintained"investment company", or to which contributions are or have been made or should be made according to a company "controlled" by an "investment company", within the terms meaning of the plan by Investment Company Act of 1940, as amended. No Borrower is subject to regulation under any Borrower Federal or any State statute or regulation which limits its ability to incur Debt.
(j) The Company owns all of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) the shares of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclethe issued and outstanding capital stock of Sprint Capital.
Appears in 1 contract
Samples: Credit Agreement (Sprint Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower Each Loan Party and each of its Subsidiaries (i) is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedof its organization, and each Significant Subsidiary of such Borrower (ii) is duly organized, validly existing qualified and in good standing under the laws of the as a foreign corporation or limited liability company in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. Each of the Loan Parties has all of the requisite power and authority, and the legal right, to execute and deliver each of the Loan Documents and the Related Documents to which it is incorporated or otherwise organizedis to be a party, to perform all of its Obligations hereunder and thereunder and to consummate the Transaction and all of the other transactions contemplated hereby and thereby.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its organization, the number and type of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries has been validly issued, are fully paid and non-assessable and are owned by such Loan Party or one or more of its Subsidiaries free and clear of all Liens, except those created under the Collateral Documents.
(c) The execution, delivery and performance by such Borrower each Loan Party of this Agreementeach Transaction Document to which it is or is to be a party, and the consummation of the transactions contemplated herebyTransaction, are within such BorrowerLoan Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) contravene such BorrowerLoan Party’s certificate of incorporation charter or by-lawsbylaws, (ii) law binding violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or affecting such Borrower or award, (iii) conflict with or result in the breach of, or constitute a default or, except as set forth in the attached Schedule 4.01(c)(iii), require any contractual restriction payment to be made under, any contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Borrower any Loan Party, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its properties.
(c) This Agreement has been duly executed and delivered by Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such Borrower. This Agreement is the legallaw, valid and binding obligation rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Borrower enforceable against such Borrower in accordance with its termscontract, except as the enforceability thereof may be limited by bankruptcyloan agreement, insolvencyindenture, fraudulent conveyance mortgage, deed of trust, lease or other similar laws affecting instrument, the enforcement violation or breach of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is sought in which could have a proceeding in equity or at law) and subject to requirements of reasonableness, good faith and fair dealingMaterial Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery and delivery, recordation, filing or performance by such Borrower any Loan Party of this Agreementany Transaction Document to which it is or is to be a party, or for the consummation of the Transaction, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) or (iv) the exercise by any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrowerauthorizations, each approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which Governmental Approvals will have been obtained duly obtained, taken, given or made and will be are in full force and effect on or prior to effect. Notwithstanding the foregoing, it is understood that (i) no regulatory approvals have been obtained in connection with the pledge of shares of any regulated entity and (ii) as of the date hereof no regulatory approvals have been obtained or are being sought in connection with the possible exercise of remedies under this Agreement or any Extension of Credit the Collateral Documents. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or for the account otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of such Borrowerthem.
(e) This Agreement has been, and each other Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each other Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, proceeding affecting any Environmental Action, affecting such Borrower Loan Party or any of its Significant Subsidiaries pending or, to the best knowledge of any Loan Party, threatened before any court, governmental agency or arbitrator of any kind that is (i) either individually or in the aggregate, could be reasonably likely to have a Material Adverse EffectEffect other than any such action, except as disclosed suit, investigation, litigation or proceeding affecting BRCOM or any of its Subsidiaries which does not affect CBI or any of its Subsidiaries, or (ii) in which there is a reasonable likelihood of an adverse determination and which purports to affect the Disclosure Documentslegality, validity or enforceability of any Transaction Document or the consummation of the Transaction, any of the Loan Documents or the Related Documents or any of the other transactions contemplated hereby.
(fg) The consolidated Consolidated balance sheet sheets of each Borrower CBI and its Consolidated Subsidiaries (including BRCOM and its Subsidiaries) as at December 31, 20072002, and the related consolidated Consolidated and consolidating, if any, statements of income and Consolidated statement of cash flows of such Borrower CBI and its Consolidated Subsidiaries (including BRCOM and its Subsidiaries) for the fiscal year then ended, accompanied by an unqualified opinion of Deloitte & Touche LLPPWC independent public accountants, an independent registered public accounting firmand the Consolidated and consolidating, if any, balance sheets of CBI and its Subsidiaries (including BRCOM and its Subsidiaries) as at June 30, 2003, and the related Consolidated and consolidating statements of income and Consolidated statement of cash flows of CBI and its Subsidiaries (including BRCOM and its Subsidiaries) for the nine months then ended, duly certified by the Chief Financial Officer of CBI, copies of each of which have been furnished to each LenderLender Party, fairly present the consolidated Consolidated and consolidating financial condition of such Borrower CBI and its Consolidated Subsidiaries (including BRCOM and its Subsidiaries) as at such date dates and the consolidated Consolidated and consolidating results of the operations of such Borrower CBI and its Consolidated Subsidiaries (including BRCOM and its Subsidiaries) for the period periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. Since applied on a consistent basis, and since December 31, 20072002, there has been no Material Adverse Change with respect Change;
(h) [Intentionally Omitted.]
(i) The Consolidated and consolidating forecasted balance sheets, statements of income and statements of cash flows of CBI and its Subsidiaries included in the Information Materials (as applicable) or delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such Borrowerforecasts, and represented, at the time of delivery, CBI’s best estimate of its future financial performance.
(gj) No written statement, Neither the Information Materials nor any other information, report, financial statement, exhibit or schedule report furnished by or on behalf of such Borrower any Loan Party to the Administrative Agent, any Agent or any Lender or any LC Issuing Bank Party in connection with the syndication Loan Documents or negotiation pursuant to the terms of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain the Loan Documents contained any untrue statement of a material misstatement of fact or intentionally omitted, omits, or will omit omitted to state any a material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, made therein not misleading.
(hk) Except as disclosed No Borrower is engaged in the Disclosure business of extending credit for the purpose of purchasing or carrying Margin Stock, and following the application of the proceeds of each Advance or drawing under each Letter of Credit, not more than 25% of the value of the assets (of CBI and its Subsidiaries (including BRCOM and its Subsidiaries) on a Consolidated basis) subject to the provisions of Section 5.02(a) or 5.02(e) or subject to any restriction contained in any agreement or instrument between CBI and any Lender Party or any Affiliate of any Lender Party relating to Debt within the scope of 7.01(e) will be Margin Stock. For purposes of this Section 4.01(k), “assets” of CBI or any of its Subsidiaries includes, without limitation, treasury stock of CBI that has not been retired.
(l) Neither any Loan Party nor any of its Subsidiaries is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Neither 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 issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by such Borrower, nor the consummation of the other transactions contemplated by the Transaction Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders will violate any provision of any governmental authority applicable to itsuch Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(m) Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could have a Material Adverse Effect.
(n) All filings and other actions necessary or desirable to perfect and protect the security interest in the Collateral created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Administrative Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or permitted under the Loan Documents.
(o) CBI and its Subsidiaries, on a consolidated basis, is Solvent (it being understood and agreed that a going concern qualification for Fiscal Year 2002 shall not in and of itself be deemed to evidence that CBI is not Solvent).
(p) (i) No accumulated funding deficiency (as defined ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has resulted in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could or is reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to Effect on any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower Loan Party or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleAffiliate.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by such Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate powers, have Amendment has been duly authorized by all necessary actioncorporate action on the part of each Borrower.
(b) The execution and delivery by each Borrower of this Amendment, and do performance by the Borrowers of the Credit Agreement as amended hereby, will not contravene (i) such Borrower’s certificate violate any applicable Law or any Organizational Documents of incorporation any Borrower or by-laws, (ii) law binding conflict with or result in any breach or contravention of, or the creation of any Lien (other than any Lien permitted by Section 7.1 of the Credit Agreement) or require any payment to be made under (x) any material Contractual Obligation to which a Borrower is a party or affecting such Borrower or (iii) the properties of any contractual restriction binding on or affecting such Borrower or any of its propertiesSubsidiaries or (y) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which a Borrower or its property is subject.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the Amendment constitutes a legal, valid and binding obligation of such Borrower each Borrower, enforceable against such Borrower in accordance with its terms, except as to the extent that the enforceability thereof hereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or reorganization, moratorium and other similar laws Laws relating to or affecting the enforcement of creditors’ ' rights in general, generally and except as the availability of the remedy of specific performance is subject to general equitable principles of equity (regardless of whether such remedy enforcement is sought in a proceeding by proceedings 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 After giving effect 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 such Borrower effectiveness of this Agreement, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained Amendment all representations and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrower.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed warranties contained in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Credit Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA other Loan Document are true and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied correct in all material respects with ERISA and (or, in the Internal Revenue Code. Such Borrower and each case of any representation or warranty that is already by its Subsidiaries have complied terms qualified as to “materiality” or “Material Adverse Effect” or similar language, in all material respects after giving effect to such qualification) with foreign law applicable the same effect as if made on and as of such date, except to its Foreign Plansthe extent any of such representations and warranties relate to a specific date, if any. As used hereinin which case such representations and warranties shall be deemed true and correct on and as of such earlier date (provided that for purposes of this clause (d), the term “Plan” representations and warranties contained in Sections 5.05(a) and (b) of the Credit Agreement shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established or maintained, or be deemed to which contributions are or have been made or should be made according refer to the terms most recent statements furnished pursuant to Sections 6.01(a) and (b) of the plan by any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISACredit Agreement, respectively). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary State of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits incorporation.
(b) The execution, delivery and performance by such each Borrower of this AgreementAgreement and the other Loan Documents to be delivered by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, laws or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been been, and each of the other Loan Documents to be delivered by it when delivered hereunder will have been, duly executed and delivered by such each Borrower. This Agreement is is, and each of the other Loan Documents when delivered hereunder will be, the legal, valid and binding obligation of such each Borrower party thereto enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this Agreement, except for such Governmental Approvals that may be required Agreement or the other Loan Documents to be obtained delivered by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowerit.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental ActionClaim, affecting such Borrower the Holding Company or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) would be reasonably likely to have a Material Adverse EffectEffect or (ii) purports to affect the legality, except as disclosed in validity or enforceability of this Agreement or any Note or the Disclosure Documentsconsummation of the transactions contemplated hereby.
(f) The consolidated Consolidated balance sheet of each Borrower the Holding Company and its Consolidated Subsidiaries as at December May 31, 20072003, and the related consolidated Consolidated statements of income and cash flows of such Borrower the Holding Company and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte Ernst & Touche Young LLP, an independent registered public accounting firmaccountants, the consolidating balance sheet of the Holding Company and its Subsidiaries as at May 31, 2003, and the related consolidating statements of income and cash flows of the Holding Company and its Subsidiaries for the fiscal year then ended, duly certified by the chief financial officer of the Holding Company, and the Consolidated and consolidating balance sheet of the Holding Company and its Subsidiaries as at November 30, 2003, and the related Consolidated and consolidating statements of income and cash flows of the Holding Company and its Subsidiaries for the nine months then ended, duly certified by the chief financial officer of the Holding Company, copies of each of which have been furnished to each Lender, fairly present present, subject, in the consolidated case of said balance sheet as at November 30, 2003, and said statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of such Borrower the Holding Company and its Consolidated Subsidiaries as at such date dates and the consolidated Consolidated results of the operations of such Borrower the Holding Company and its Consolidated Subsidiaries for the period periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. Since December May 31, 20072003, there has been no Material Adverse Change with respect to such BorrowerChange.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Each of the circumstances under which they wereBorrowers and their Subsidiaries has good, aremarketable fee or leasehold title (as applicable) or ownership interest to all of the material assets and properties of the Borrowers and their Subsidiaries, or will be madefree and clear of all Liens, not misleadingother than Liens permitted by the Loan Documents.
(h) Except as disclosed in the Disclosure Documents, such Borrower The operations and properties of each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied comply in all material respects with foreign law all applicable to its Foreign PlansEnvironmental Laws, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and all past non-compliance with such Environmental Laws has been established resolved without material ongoing obligations or maintainedcosts, or and no circumstances exist that could reasonably be likely to which contributions are or have been made or should be made according to (i) form the terms basis of the plan by any an Environmental Claim against either Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean Subsidiaries or any Plan which of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect.
(i) Set forth on Schedule 4.01(i) hereto is a “multiemployer plan” complete and accurate list of all Subsidiaries of each of the Borrowers as of the date hereof, showing (as to each such term Subsidiary) the jurisdiction of its incorporation. All of the outstanding capital stock and other ownership interests (other than directors qualifying shares) in each of the Borrower's Subsidiaries has been validly issued, are fully paid and non-assessable and are owned by such Borrower or one or more of its Subsidiaries free and clear of all Liens and, as of the date hereof, free of any outstanding options, warrants, rights of conversion or purchase or similar rights.
(j) Each of the outstanding securities issued by the Holding Company was duly authorized and validly issued, is defined fully paid and non-assessable, and is not and will not be subject to any preemptive or similar right or restriction. Each of those outstanding securities was acquired from the issuer in Section 4001(a)(3a transaction in compliance with the Securities Act of 1933, as amended, and other applicable laws.
(k) No Borrower is engaged in the business of ERISAextending 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). The term “Foreign Plan” shall mean , and no proceeds of any pension, profit-sharing, deferred compensationAdvance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(l) No Borrower is an "investment company", or other employee benefit plana company "controlled" by an "investment company", program or arrangement maintained by any entity subsidiary whichwithin the meaning of the Investment Company Act of 1940, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.as amended. ARTICLE V
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
Representations and Warranties of the Borrowers. Each Borrower of the Parent Borrower, and in the case of paragraphs (a), (b), (c), (d) and (g) below each Foreign Subsidiary Borrower, represents and warrants as follows:
(a) Such Borrower is a corporation duly organizedorganized or formed, validly existing and in good standing under the laws of the its jurisdiction in which it is incorporated of organization or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedformation.
(b) The execution, delivery and performance by such Borrower of this AgreementAgreement and the Notes made by it, and the consummation of the transactions contemplated hereby, are within such Borrower’s corporate (or other) powers, have been duly authorized by all necessary corporate (or other) action, and do not contravene (i) such Borrower’s certificate of incorporation charter or by-laws, laws (or other organizational documents) or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this AgreementAgreement or the Notes made by it, except except, in the case of any such Foreign Subsidiary Borrower, for such Governmental Approvals that may be authorizations, approvals, consents, notices and filings which have been obtained or made (or which are not required to be obtained by such Borrower in connection with any Extension or made prior to the initial Extensions of Credit to or for the account of such Foreign Subsidiary Borrower, each of which Governmental Approvals will have been obtained ) and will be are in full force and effect on or prior to effect.
(d) This Agreement has been, and each of the date Notes when delivered by such Borrower hereunder will have been, duly executed and delivered by such Borrower. This Agreement is, and each of any Extension of Credit to or for the account Notes when delivered by such Borrower hereunder will be, the legal, valid and binding obligation of such BorrowerBorrower enforceable against such Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Parent Borrower and its Subsidiaries as at August 31, 2006, and the related Consolidated statements of income and cash flows of the Parent Borrower and its Subsidiaries for the twelve-months then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, and the Consolidated balance sheet of the Parent Borrower and its Subsidiaries as at November 30, 2006, and the related Consolidated statements of income and cash flows of the Parent Borrower and its Subsidiaries for the three months then ended, duly certified by the Chief Financial Officer, Treasurer, Assistant Treasurer, Controller or Assistant Controller of the Parent Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at November 30, 2006, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Parent Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Parent Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Except as disclosed in the Parent Borrower’s Quarterly Report on Form 10-Q for the quarter ending November 30, 2006, since August 31, 2006, there has been no Material Adverse Change.
(f) There is no pending or or, to the knowledge of such Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting such the Parent Borrower or any of its Significant Consolidated Subsidiaries before any court, governmental agency or arbitrator that (i) is reasonably likely to have a Material Adverse EffectEffect (other than the Disclosed Litigation), except as disclosed and there has been no material adverse change in the Disclosure Documents.
(f) The consolidated balance sheet status of, or financial effect on the Parent Borrower or any of each Borrower and its Consolidated Subsidiaries as at December 31a result of, 2007the Disclosed Litigation or (ii) purports to affect the legality, and validity or enforceability of this Agreement, any Note or the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results consummation of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertransactions contemplated hereby.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, containsis not an “investment company”, or will contain any material misstatement of fact or intentionally omitteda company “controlled” by an “investment company”, omits, or will omit to state any material fact necessary to make within the statements therein, in the light meaning of the circumstances under which they wereInvestment Company Act of 1940, are, or will be made, not misleadingas amended.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Samples: Credit Agreement (Monsanto Co /New/)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated of its incorporation or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedorganization.
(b) The execution, delivery and performance by such Borrower of this Agreement, Agreement and the consummation of the transactions contemplated hereby, Notes issued by such Borrower are within such Borrower’s corporate powers, have been duly authorized by all necessary actionorganizational action on the part of such Borrower, and do not and will not contravene (i) the articles or certificate of incorporation, by-laws or the organizational documents of such Borrower’s certificate of incorporation or by-laws, (ii) applicable law binding or affecting such Borrower or (iii) any contractual or legal restriction binding on or affecting the properties of such Borrower or any of its propertiesSubsidiaries.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this AgreementAgreement or the applicable Notes, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension an appropriate order or orders of Credit to (i) the Securities and Exchange Commission under the Public Utility Holding Company Act of 1935, if applicable, and (ii) the Federal Energy Regulatory Commission, if applicable, which order or for the account of such Borrower, each of which Governmental Approvals will orders have been duly obtained and will be are (x) in full force and effect on or prior to the date of any Extension of Credit to or and (y) sufficient for the account of such Borrowerpurposes hereof.
(ed) There is no pending or threatened actionThis Agreement is, suitand the applicable Notes when delivered hereunder will be, investigationlegal, litigation or proceedingvalid and binding obligations of such Borrowers, including, without limitation, any Environmental Action, affecting enforceable against such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effectin accordance with their respective terms, except as disclosed in the Disclosure Documentsenforceability thereof may be limited by equitable principles or bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally.
(fi) The In the case of PECO, (A) the consolidated balance sheet of each Borrower PECO and its Consolidated Subsidiaries as at December 31, 20072004, and the related consolidated statements of income and retained earnings and of cash flows of such Borrower PECO and its Consolidated Subsidiaries for the fiscal year then ended, accompanied certified by an opinion of Deloitte & Touche Pricewaterhouse Coopers LLP, an independent registered public accounting firmand the unaudited consolidated balance sheet of PECO and its Subsidiaries as at September 30, 2005, and the related unaudited statements of income for the nine-month period then ended, copies of each of which have been furnished to each Lender, fairly present in all material respects (subject, in the case of such balance sheet and statement of income for the period ended September 30, 2005, to year-end adjustments) the consolidated financial condition of such Borrower PECO and its Consolidated Subsidiaries as at such date dates and the consolidated results of the operations of such Borrower PECO and its Consolidated Subsidiaries for the period periods ended on such datedates, all in accordance with generally accepted accounting principles consistently applied. Since GAAP; and (B) since December 31, 2007, 2004 there has been no Material Adverse Change with respect to PECO.
(ii) In the case of Exelon, (A) the consolidated balance sheet of Exelon and its Subsidiaries as at December 31, 2004 and the related consolidated statements of income, retained earnings and cash flows of Exelon for the fiscal year then ended, certified by Pricewaterhouse Coopers LLP, and the unaudited consolidated balance sheet of Exelon and its Subsidiaries as of September 30, 2005 and the related unaudited statement of income for the nine-month period then ended, copies of which have been furnished to each Lender, fairly present in all material respects (subject, in the case of such balance sheet and statement of income for the period ended September 30, 2005, to year-end adjustments) the consolidated financial condition of Exelon and its Subsidiaries as at such dates and the consolidated results of the operations of Exelon and its Subsidiaries for the periods ended on such dates in accordance with GAAP; and (B) since December 31, 2004 there has been no Material Adverse Change with respect to Exelon.
(iii) In the case of Genco, (A) the consolidated balance sheet of Genco and its Subsidiaries as at December 31, 2004 and the related consolidated statements of income, retained earnings and cash flows of Genco for the fiscal year then ended, certified by Pricewaterhouse Coopers LLP, and the unaudited consolidated balance sheet of Genco and its Subsidiaries as of September 30, 2005 and the related unaudited statement of income for the nine-month period then ended, copies of which have been furnished to each Lender, fairly present in all material respects (subject, in the case of such balance sheet and statement of income for the period ended September 30, 2005, to year-end adjustments) the consolidated financial condition of Genco and its Subsidiaries as at such dates and the consolidated results of the operations of Genco and its Subsidiaries for the periods ended on such dates in accordance with GAAP; and (B) since December 31, 2004 there has been no Material Adverse Change with respect to Genco.
(f) Except as disclosed in such Borrower’s Annual, Quarterly or Current Reports, each as filed with the Securities and Exchange Commission and delivered to the Lenders prior to the later of the date of execution and delivery of this Agreement or the date of the most recent extension of the Commitment Termination Date pursuant to Section 2.17, and, in the case of Exelon, on and after the PSEG Merger Date, as disclosed in any Annual, Quarterly or Current Report of PSEG or any Subsidiary thereof filed with the Securities and Exchange Commission prior to October 25, 2005, and, in the case of Genco, on and after the Power Merger Date, as disclosed in any Annual, Quarterly or Current Report of Power filed with the Securities and Exchange Commission prior to October 25, 2005, there is no pending or threatened action, investigation or proceeding affecting such Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that may reasonably be anticipated to have a Material Adverse Effect with respect to such Borrower. There is no pending or threatened action or proceeding against such Borrower or any of its Subsidiaries that purports to affect the legality, validity, binding effect or enforceability against such Borrower of this Agreement or any Note issued by such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf proceeds of any Advance to such Borrower to the Administrative Agent, any Lender have been or any LC Issuing Bank will be used directly or indirectly in connection with the syndication or negotiation acquisition of this Agreement or included herein or delivered in excess of 5% of any class of equity securities that is registered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light Section 12 of the circumstances under which they were, are, Exchange Act or will be made, not misleadingany transaction subject to the requirements of Section 13 or 14 of the Exchange Act.
(h) Except as disclosed Such Borrower is not engaged in the Disclosure Documentsbusiness of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance to such Borrower 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. Not more than 25% of the value of the assets of such Borrower and each Significant Subsidiary of such Borrower its Subsidiaries is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itrepresented by margin stock.
(i) No Such 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) During the twelve consecutive month period prior to the date of the execution and delivery of this Agreement and prior to the date of any borrowing of Advances by such Borrower or the issuance or modification of any Facility LC for the account of such Borrower, no steps have been taken to terminate any Plan (excluding any termination arising out of the institution by or against any ComEd Entity of any bankruptcy, insolvency or similar proceeding so long as such termination will not constitute an Event of Default or Unmatured Event of Default under Section 6.01(g))., and there is no “accumulated funding deficiency deficiency” (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue CodeCode or Section 302 of ERISA) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such Borrower No condition exists or event or transaction has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV of ERISA occurred with respect to any Plan (including any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 might result in the terms of the plan incurrence by any such Borrower or any other member of its ERISA Affiliates. The term “Multiemployer Plan” shall mean the Controlled Group of any Plan which is a “multiemployer plan” material liability (other than to make contributions, pay annual PBGC premiums or pay out benefits in the ordinary course of business), fine or penalty (excluding any condition, event or transaction arising out of the institution by or against any ComEd Entity of any bankruptcy, insolvency or similar proceeding so long as such term is defined in condition, event or transaction does not constitute an Event of Default or Unmatured Event of Default under Section 4001(a)(3) of ERISA6.01(g). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle).
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers represents and warrants as to itself as follows:
(a) Such Borrower and its Guarantor, if any, is a corporation corporation, general partnership or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated of its incorporation or otherwise organized, formation and each Significant Subsidiary of such Borrower is duly organized, validly existing qualified and in good standing in each jurisdiction wherein the failure to so qualify would have a material adverse effect on the financial condition or results of operations of such Borrower and its Subsidiaries, taken as a whole. Each of the Subsidiaries of such Borrower and its Guarantor, if any, is duly organized and validly existing under the laws of the its jurisdiction in which it is incorporated of incorporation or otherwise organizedformation.
(b) The execution, delivery and performance by such Borrower and its Guarantor, if any, of this Agreementeach Loan Document to which it is a party delivered hereunder, and the consummation of the transactions contemplated hereby, are within such Borrower’s their respective corporate or other similar organization powers, have been duly authorized by all necessary corporate or other similar organization action, and do not contravene (i) such Borrower’s certificate of incorporation or their respective charter, by-laws, laws or other organizational documents or (ii) law binding or affecting such Borrower or (iii) any material contractual restriction binding on or affecting such Borrower or any of its propertiessuch Guarantor, as the case may be.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower and its Guarantor, if any, of this AgreementAgreement or any other Loan Document to which it is a party, except for any such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to authorizations, approvals, actions, notices or for the account of such Borrower, each of which Governmental Approvals will filings as have already been made or obtained and will be are in full force and effect on or effect.
(d) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by such Borrower and its Guarantor, if any, party thereto. This Agreement is, and each other Loan Document to which it is a party when delivered hereunder will be, the legal, valid and binding obligation of such Borrower and its Guarantor, if any, enforceable against it in accordance with their respective terms.
(i) The unaudited financial statements of such Borrower and its Subsidiaries delivered to the Agent prior to the date Closing Date, in the case of any Extension the Initial Borrower, or upon the effectiveness of Credit to or the Borrower Accession Agreement, in the case of each Additional Borrower (other than an Affiliate Guaranteed Borrower), (A) were prepared in good faith from its internal accounting systems and (B) are in substantially the form used by its managers and those of its Subsidiaries for internal review and business operations in the account of such Borrowerordinary course.
(eii) The financial statements of each Guarantor, if any, delivered to the Agent pursuant to Section 8.10(a)(iii) fairly present, subject, in the case of any such financial statements that are not audited, to year-end audit adjustments and footnote disclosure, the financial condition of such Guarantor and its Included Subsidiaries as at the date of such financial statements and the results of the operations of such Guarantor and its Included Subsidiaries for the period ended on such date.
(iii) Except for the Transaction or as disclosed in writing to the Agent prior to the Closing Date, since December 31, 2004, there has been no Material Adverse Change.
(f) There is no pending or overtly threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, proceeding affecting such Borrower or Borrower, any of its Significant Subsidiaries or its Guarantor, if any, before any court, governmental agency or arbitrator that is could reasonably likely be expected to have a Material Adverse Effectadversely affect the legality, except as disclosed in validity or enforceability of any Loan Document, or the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results consummation of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowertransactions contemplated hereby.
(g) No Such Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance made to such Borrower will be used to extend credit to any Person other than another Borrower for the purpose of purchasing or carrying any margin stock.
(h) The proceeds of the Advances will be used solely in accordance with Section 2.16, the making of each Advance pursuant to this Agreement will comply in all respects with the provisions of Regulation U issued by the Board of Governors of the Federal Reserve System, and any purchases of common stock of the Company by it shall be effected in compliance with all applicable laws.
(i) All written statement, information (other than financial information, reportprojections, financial statement, exhibit or schedule estimates and other forward looking statements) heretofore furnished by or on behalf of such Borrower and its Guarantor, if any, to the Administrative Agent, any Lender Lenders for purposes of or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein any transaction contemplated hereby, taken as a whole, in each case as such written information may be amended, modified or delivered pursuant hereto containedsupplemented by it from time to time, contains, or will contain any is correct in all material misstatement of fact or intentionally omitted, omits, or will respects and does not omit to state any material fact or any fact necessary to make the statements therein, contained therein not materially misleading in the light of the circumstances under which they were, are, or will be such statements were made, not misleading.
(hj) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rulesnot an “investment company”, regulations and orders or a company “controlled” by an “investment company”, within the meaning of any governmental authority applicable to itthe Investment Company Act of 1940, as amended.
(ik) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 All of the Internal Revenue Code) that could reasonably be expected Advances and other obligations owing by such Borrower to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA the Agent and the Internal Revenue Code. Such Borrower other Lenders and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign Plansunder the Credit Agreement and the Notes, if any. As used herein, the term “Plan” shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established rank pari passu or maintained, or senior to which contributions are or have been made or should be made according to the terms of the plan by any Borrower or any all of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehiclesenior unsecured indebtedness for money borrowed.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower of the Borrowers represents and warrants to each Lender, each Managing Agent and the Administrative Agent, on and as of the Closing Date and the date of each subsequent Advance, as follows:
(a) Such Each Borrower is a corporation duly organizedformed, validly existing and in good standing under the laws of the its jurisdiction in which of organization, and it is incorporated or otherwise organizedduly qualified to do business in each jurisdiction where the conduct of its business requires it to be so qualified, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under except where the laws of the jurisdiction in which it is incorporated or otherwise organizedfailure to be so qualified would not have a Material Adverse Effect.
(b) The execution, delivery and performance by such each Borrower of this Agreement, Agreement and the consummation other Transaction Documents to which it is a party, including its use of the transactions contemplated herebyproceeds of Advances, (i) are within such Borrower’s corporate its powers, ; (ii) have been duly authorized by all necessary organizational action, and ; (iii) do not contravene or result in a default under or conflict with (iA) its constitutional documents; (B) any law, rule or regulation applicable to it except where such Borrower’s certificate contravention, default or conflict would not have a Material Adverse Effect; (C) any indenture, loan agreement, mortgage, deed of incorporation trust or by-laws, (ii) law binding other material agreement or affecting such Borrower instrument to which it is a party or by which it is bound; or (iiiD) any contractual restriction order, writ, judgment, award, injunction or decree binding on or affecting such Borrower it or any of its properties.
property; and (civ) do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties except under the Transaction Documents. This Agreement has and the other Transaction Documents to which it is a party have been duly executed and delivered by such Borrower. This Agreement is it.
(c) Except as permitted by this Agreement, the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in generalBorrowers have not engaged, and except do not presently engage, in any activity other than the activities undertaken pursuant to or as contemplated by the availability of Transaction Documents, nor has either Borrower entered into any agreement other than the remedy of specific performance is subject Transaction Documents and any agreement necessary to general principles of equity (regardless of whether such remedy is sought in a proceeding in equity or at law) and subject undertake any activity pursuant to requirements of reasonableness, good faith and fair dealingthe Transaction Documents.
(d) No authorization or approval authorization, approval, consent, order or other action by, and no notice to or filing with, any governmental authority Governmental Authority or regulatory body other Person that has not been made or any other third party obtained is required for the due execution, delivery and performance by such Borrower the Borrowers of this AgreementAgreement or any other Transaction Document to which it is a party, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension other than the filing of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained UCC financing statements and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowercontinuation statements.
(e) Each of this Agreement and the other Transaction Documents to which either Borrower is a party constitutes its legal, valid and binding obligation enforceable against such Borrower in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(f) There is no pending or, to the Borrowers’ knowledge, threatened action or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, proceeding affecting such either Borrower or any of its Significant Subsidiaries properties before any court, governmental agency Governmental Authority or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowerarbitrator.
(g) The applicable Borrower owns all right, title and interest in, to and under the Pool Receivables, Related Security and Collections, free and clear of any Adverse Claim (other than any Adverse Claim arising solely as a result of any action taken by any Lender, any Managing Agent or the Administrative Agent and other than with respect to the Receivables set forth on Schedule VI). This Agreement creates a security interest in favor of the Administrative Agent, for the benefit of each Lender Group, in the Pool Receivables, Related Security, Collections and other Collateral and the Administrative Agent, for the benefit of each Lender Group, has a First Priority Interest in the Pool Receivables, Related Security, Collections and other Collateral (other than the Receivables set forth on Schedule VI). No effective financing statement covering any Pool Receivable is on file in any recording office, except those (i) filed in favor of a Borrower pursuant to a Purchase and Contribution Agreement and the Administrative Agent pursuant to this Agreement or (ii) listed on Schedule VI.
(h) No Information Package (if prepared by the Borrowers or one of its Affiliates acting as Servicer) or other written statement, information, reportexhibit, financial statement, exhibit document, book, record or schedule report furnished by or on behalf of such Borrower the Borrowers to the Administrative Agent, any Lender Managing Agent or any LC Issuing Bank Lender in connection with the syndication or negotiation of this Agreement or included herein any other Transaction Document to which it is a party and in each case as modified or delivered pursuant hereto contained, contains, or will contain supplemented by other information so furnished when taken as a whole contains any material misstatement of fact or intentionally omitted, omits, or will omit omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be were made, not misleading.
; provided, that, with respect to projected financial information, the Borrowers represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation (hit being understood that such projections may vary from the actual results and that such variances may be material); provided, further, that, with respect to pro forma financial information, the Borrowers represent only that such information was prepared in good faith in accordance with assumptions and requirements of GAAP for pro forma presentation and based upon such other assumptions that are believed to be reasonable at the time of preparation and, to the extent material, are disclosed as part of such pro forma financial information. lt is understood that (i) Except no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections and statements as disclosed to anticipated future performance or conditions, and the assumptions on which they were based or concerning any information of a general economic nature or general information about the Borrowers and their Subsidiaries’ industry, contained in any such information, reports, financial statements, exhibits or schedules, except that, in the Disclosure Documents, such Borrower and each Significant Subsidiary case of such Borrower is in material compliance with all laws forecasts, estimates, pro forma information, projections and statements, as of the date such forecasts, estimates, pro forma information, projections and statements were generated, (including ERISA 1) such forecasts, estimates, pro forma information, projections and Environmental Lawsstatements were based on the good faith assumptions of the management of the Borrowers and (2) rulessuch assumptions were believed by such management to be reasonable and (ii) such forecasts, regulations estimates, pro forma information and orders of any governmental authority applicable statements, and the assumptions on which they were based, may or may not prove to itbe correct.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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 The “Plan” shall mean an “employee pension benefit planlocation” (as defined in Section 3 the UCC) of ERISA) which the US Borrower is and has been established Delaware or maintained, or to which contributions are or have been made or should be made according such other jurisdiction as notified to the terms Administrative Agent in accordance with this Agreement.The principal place of business, chief executive office and registered office of each Borrower is at the address(es) referred to in Section 1(b) of Exhibit IV or such other location as such Borrower or the Servicer may notify the Administrative Agent. The office where each Borrower keeps its records concerning the Pool Receivables is at the address(es) referred to in Section 1(b) of Exhibit IV or such other location as such Borrower or the Servicer may notify the Administrative Agent.
(j) None of the plan Originators or the Borrowers have granted to any Person, other than the Administrative Agent, for the benefit of each Lender Group, as contemplated by this Agreement, dominion and control of any Borrower Concentration Account or any Collection Account, or, in each case, the right to take control of any such account at a future time or upon the occurrence of a future event.
(k) Neither Borrower is in violation of any order of any court, arbitrator or Governmental Authority binding on such Borrower.
(l) No proceeds of any Advance will be used for any purpose that violates Regulations T, U or X of the Federal Reserve Board.
(m) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(n) No event has occurred and is continuing that constitutes Event of Default or an Unmatured Event of Default, and no event would result from an Advance in respect of the Pool Receivables or from the application of the proceeds therefrom that constitutes Event of Default or an Unmatured Event of Default.
(o) Each Borrower will account for each Advance secured by the Pool Receivables hereunder in its ERISA Affiliates. The term “Multiemployer Plan” books and financial statements a debt of the Borrowers, allocated between the Borrowers as the Borrowers shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicledetermine.
Appears in 1 contract
Samples: Receivables Financing Agreement (Herc Holdings Inc)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary indicated at the beginning of such this Agreement. Such Borrower is duly organized, validly existing qualified and in good standing under as a foreign corporation authorized to do business in each jurisdiction (other than the laws jurisdiction of its incorporation) in which the nature of its activities or the character of the jurisdiction properties it owns or leases makes such qualification necessary and in which it is incorporated the failure so to qualify would have a materially adverse effect on the financial condition or otherwise organizedoperations of the Company and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by such Borrower of this Agreement, Agreement and the consummation Notes of the transactions contemplated hereby, such Borrower are within such Borrower’s corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (i) such Borrower’s certificate of incorporation charter or by-laws, laws (or equivalent constitutive documents) or (ii) law binding any law, rule, regulation or affecting contractual restriction in any material contract or, to the knowledge of the Chief Financial Officer of the Company, any other contract the breach of which would limit the ability of such Borrower to perform its obligations under this Agreement or (iii) any contractual restriction the Notes, binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 such governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this AgreementAgreement or the Notes delivered by it.
(d) This Agreement is, except for and the Notes when delivered hereunder will be, legal, valid and binding obligations of such Governmental Approvals that may be required to be obtained by Borrower party thereto enforceable against such Borrower in connection accordance with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowertheir respective terms.
(e) The Consolidated financial statements of the Company and its Consolidated Subsidiaries as of December 31, 2003 and the related Consolidated statements of income, Consolidated balance sheets, Consolidated statements of shareholders’ equity and Consolidated statements of cash flows for the fiscal year then ended, reported on by Ernst & Young LLP and set forth in the Company’s 2003 Form 10-K, and the Consolidated financial statements of the Company and its Consolidated Subsidiaries as of July 2, 2004 and the related Consolidated statements of income, Consolidated balance sheets, Consolidated statements of shareholders’ equity and Consolidated statements of cash flows for the six months then ended, duly certified by the chief financial officer of the Company, a copy of which has been delivered to each of the Lenders, fairly present, subject, in the case of said financial statements as at July 2, 2004, to year-end audit adjustments, in accordance with generally accepted accounting principles, the consolidated financial position of the Company and its Consolidated Subsidiaries at such dates and their consolidated results of operations for the periods ended on such dates. Since December 31, 2003, there has been no material adverse change in the business, financial position or results of operations of the Company and its Subsidiaries, taken as a whole.
(f) There is no pending or, to the best of such Borrower’s knowledge, threatened action or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting proceeding involving such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that arbitrator, (i) which is reasonably likely to have a Material Adverse Effect, except as disclosed in materially adversely affect the Disclosure Documents.
(f) The consolidated balance sheet financial condition or operations of each Borrower the Company and its Consolidated Subsidiaries taken as at December 31a whole or (ii) which purports to affect the legality, 2007, and the related consolidated statements validity or enforceability of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrowerthis Agreement or any Note.
(g) No written statementproceeds of any Advance will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934, information, report, financial statement, exhibit or schedule furnished by or on behalf other than immaterial quantities of equity securities held in the investment portfolio of a Person whose stock is acquired with the proceeds of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleadingAdvance.
(h) Except as disclosed Such Borrower is not engaged in the Disclosure Documentsbusiness of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U), such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders no proceeds of any governmental authority applicable Advance will be used to itpurchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(i) No accumulated funding deficiency (as defined Default described in Section 302 of ERISA 6.01(g) has occurred and Section 412 is continuing, or is reasonably expected to occur within 60 days.
(j) A copy of the Internal Revenue CodeSchedule B (Actuarial Information) that could reasonably be expected to have a Material Adverse Effect, whether the most recent annual report (Form 5500 Series) of the Company or not waived, exists any ERISA Affiliate with respect to any Plan. Such Borrower each Plan has not incurredbeen filed with the Department of Labor, and does not presently expect to incur, any withdrawal liability under Title IV each such Schedule B fairly presents the funding status and financial condition of ERISA with respect to any Multiemployer such Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA respects, and since the Internal Revenue Code. date of such Schedule B there has been no material adverse change in such funding status or financial condition.
(k) Such 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” shall mean is not an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is and has been established or maintainedinvestment company”, or to which contributions are or have been made or should be made according to a company “controlled” by an “investment company”, within the terms meaning of the plan by any Borrower or any Investment Company Act of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (1940, as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleamended.
Appears in 1 contract
Representations and Warranties of the Borrowers. Each Borrower represents The Borrowers represent and warrants warrant as follows:
(a) Such Each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary State of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits incorporation.
(b) The execution, delivery and performance by such each Borrower of this Agreement, Amendment or the Credit Agreement and the consummation of the transactions contemplated other Loan Documents, as amended hereby, are within such the Borrower’s 's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, laws or (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement Amendment has been duly executed and delivered by such each Borrower. This Amendment and the Credit Agreement is and the other Loan Documents, as amended hereby, are the legal, valid and binding obligation of such each Borrower party thereto, enforceable against such Borrower in accordance with its their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such any Borrower of this AgreementAmendment or the Credit Agreement or the other Loan Documents, except for such Governmental Approvals that may be required to be obtained by such Borrower in connection with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borroweras amended hereby.
(e) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental ActionClaim, affecting such Borrower the Holding Company or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is (i) either would be reasonably likely to have a Material Adverse EffectEffect or (ii) purports to adversely affect the legality, except as disclosed in validity or enforceability of this Amendment or the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, Credit Agreement and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure other Loan Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to itas amended hereby.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicle.
Appears in 1 contract
Samples: Credit Agreement (Scholastic Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organized, and each Significant Subsidiary of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedits incorporation.
(b) The execution, delivery and performance by such Borrower of this Agreement, Amendment and the consummation of the transactions contemplated Facility Documents, as amended hereby, to which it is or is to be a party are within such Borrower’s 's corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, (ii) law binding or affecting such Borrower or (iii) any contractual restriction binding on or affecting such Borrower Borrower, or result in, or require, the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge, encumbrance or preferential arrangement of any nature upon or with respect to any of its propertiesthe properties now owned or hereafter acquired by such Borrower, or (iii) to the best of such Borrower's knowledge, any law.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legalNo authorization, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and performance by such Borrower of this AgreementAmendment or any of the Facility Documents, except for such Governmental Approvals that may be required as amended hereby, to which it is or is to be obtained by a party.
(d) This Amendment and each of the other Facility Documents as amended hereby, to which such Borrower is a party constitute legal, valid and binding obligations of such Borrower enforceable against such Borrower in connection accordance with any Extension of Credit to or for the account of such Borrower, each of which Governmental Approvals will have been obtained and will be in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borrowertheir respective terms.
(e) To the best of such Borrower's knowledge, the Security Agreement constitutes valid and perfected second priority security interests and liens in and to the Collateral covered thereby enforceable against all third parties in all jurisdictions and secure the payment of all obligations of such Borrower under the Facility Documents, as amended hereby, and the execution, delivery and performance of this Amendment do not adversely affect the aforesaid security interests and liens of such Security Agreement.
(f) There is no pending or threatened action, suit, investigation, litigation action or proceeding, including, without limitation, any Environmental Action, proceeding affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effectarbitrator, except as disclosed in which may materially adversely affect the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the or operations of such Borrower and its Consolidated Subsidiaries for or any Subsidiary or which purport to affect the period ended on such datelegality, all validity or enforceability of this Amendment or any of the other Facility Documents, as amended hereby, except as set forth in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such BorrowerSchedule 4(f) hereto.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Internal Revenue Code) that could reasonably be expected to have a Material Adverse Effect, whether or not waived, exists with respect to any Plan. Such 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. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA and the Internal Revenue Code. Such 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” shall mean 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 After giving effect to the terms of the plan by any Borrower Amendment, no event has occurred and is continuing which constitutes a Default or any an Event of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleDefault.
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Samples: Credit Agreement (Us Homecare Corp)
Representations and Warranties of the Borrowers. Each Borrower represents and warrants as follows:
(a) Such The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction indicated in which it is incorporated or otherwise organized, and each Significant Subsidiary the recital of such Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated or otherwise organizedparties to this Amendment.
(b) The execution, delivery and performance by such each Borrower of this Agreement, Amendment and the consummation performance by each Borrower of each of the transactions contemplated Credit Agreement and the Notes, as amended hereby, to which it is a party are within such Borrower’s 's corporate powers, have been duly authorized by all necessary action, corporate action and do not contravene (i) such Borrower’s certificate of incorporation 's charter or by-laws, laws (or equivalent constitutive documents) or (ii) law binding any law, rule, regulation or affecting such Borrower or (iii) any contractual restriction in any material contract or, to the knowledge of the Chief Financial Officer of the Company, any other contract the breach of which would limit the ability of any Borrower to perform its obligations under the Credit Agreement or the Notes, as amended hereby, binding on or affecting such Borrower or any of its propertiesBorrower.
(c) This Agreement has been duly executed and delivered by such Borrower. This Agreement is the legal, valid and binding obligation of such Borrower enforceable against such Borrower in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights in general, and except as the availability of the remedy of specific performance is subject to general principles of equity (regardless of whether such remedy is 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 regulatory body or any other third party is required for the due execution, delivery and or performance by such Borrower of this AgreementAmendment or the performance by each Borrower of each of the Credit Agreement or the Notes, except for such Governmental Approvals that may be required as amended hereby, to be obtained which it is a party.
(d) This Amendment has been duly executed and delivered by such Borrower. This Amendment and each of the Credit Agreement and the Notes, as amended hereby, to which such Borrower in connection with any Extension of Credit to or for the account is a party are legal, valid and binding obligations of such Borrower, each of which Governmental Approvals will have been obtained and will be enforceable against such Borrower in full force and effect on or prior to the date of any Extension of Credit to or for the account of such Borroweraccordance with their respective terms.
(e) There is no pending or, to the best of each Borrower's knowledge, threatened action or threatened action, suit, investigation, litigation or proceeding, including, without limitation, proceeding involving any Environmental Action, affecting such Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that is reasonably likely to have a Material Adverse Effect, except as disclosed in the Disclosure Documents.
(f) The consolidated balance sheet of each Borrower and its Consolidated Subsidiaries as at December 31, 2007, and the related consolidated statements of income and cash flows of such Borrower and its Consolidated Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, an independent registered public accounting firm, copies of each of which have been furnished to each Lender, fairly present the consolidated financial condition of such Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of such Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2007, there has been no Material Adverse Change with respect to such Borrower.
(g) No written statement, information, report, financial statement, exhibit or schedule furnished by or on behalf of such Borrower to the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication or negotiation of this Agreement or included herein or delivered pursuant hereto contained, contains, or will contain any material misstatement of fact or intentionally omitted, omits, or will omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were, are, or will be made, not misleading.
(h) Except as disclosed in the Disclosure Documents, such Borrower and each Significant Subsidiary of such Borrower is in material compliance with all laws (including ERISA and Environmental Laws) rules, regulations and orders of any governmental authority applicable to it.
(i) No accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 which is likely to materially adversely affect the financial condition or operations of the Internal Revenue CodeCompany and its Subsidiaries taken as a whole or (ii) that could reasonably be expected purports to have a Material Adverse Effectaffect the legality, whether validity or not waived, exists with respect to any Plan. Such Borrower has not incurred, and does not presently expect to incur, any withdrawal liability under Title IV enforceability of ERISA with respect to any Multiemployer Plan that could reasonably be expected to have a Material Adverse Effect. Such Borrower and each of its ERISA Affiliates have complied in all material respects with ERISA this Amendment or the Credit Agreement and the Internal Revenue Code. Such Borrower and each of its Subsidiaries have complied in all material respects with foreign law applicable to its Foreign PlansNotes, if any. As used herein, the term “Plan” shall mean 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 any Borrower or any of its ERISA Affiliates. The term “Multiemployer Plan” shall mean any Plan which is a “multiemployer plan” (as such term is defined in Section 4001(a)(3) of ERISA). The term “Foreign Plan” shall mean any pension, profit-sharing, deferred compensation, or other employee benefit plan, program or arrangement maintained by any entity subsidiary which, under applicable local foreign law, is required to be funded through a trust or other funding vehicleamended hereby.
Appears in 1 contract
