Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor represents and warrants as follows: (a) Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, in good standing under the laws of the State of its incorporation. (b) The execution, delivery and performance by each of the Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (A) such Credit Party’s charter or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any material Contractual Obligation or legal restriction, binding on or affecting such Credit Party or any Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of such Credit Party or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary. (c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for. (d) Each Credit Document to which any Credit Party is a party is a legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. (e) The consolidated balance sheet of the Guarantor and its Subsidiaries as at September 30, 2005, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. (f) Since December 31, 2004, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbia. (g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets. (h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock. (i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. (j) Schedule B (Actuarial Information) to the 2004 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect. (k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect. (l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect. (m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. (n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith. (o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP. (p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. (q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e). (r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made. (s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor Credit Party represents and warrants as follows:
(a) Each of Credit Party has the Borrower right, power, and authority and has taken all necessary corporate or other action to authorize the Guarantor is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, in good standing under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (A) such Credit Party’s charter or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any material Contractual Obligation or legal restriction, binding on or affecting such Credit Party or any Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of such Credit Party or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is Amendment. This Amendment constitutes a legal, valid and binding obligation of such Credit Party, enforceable against such each Credit Party that is party hereto in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(eb) The consolidated balance sheet execution, delivery and performance by each Credit Party of the Guarantor and its Subsidiaries as at September 30, 2005, this Amendment and the related statements transactions contemplated hereby do not and will not, by the passage of income and retained earnings time, the giving of the Guarantor and its Subsidiaries for the nine months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 2004, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial notice or otherwise, (i) require any Governmental Approval or prospects of violate any of the Credit Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Applicable Law relating to any Credit Party before or any court, governmental agency Subsidiary thereof where the failure to obtain such Governmental Approval or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would such violation could reasonably be expected to have a Material Adverse Effect, (ii) conflict with, result in a breach of or that constitute a default under the articles of incorporation, bylaws or other organizational documents of any Credit Party or any Subsidiary thereof, (iiii) purports conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to affect which such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such Person, which could, individually or in the legalityaggregate, reasonably be expected to have a Material Adverse Effect, (iv) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Person other than Permitted Liens or (v) require any 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 execution, delivery, performance, validity or enforceability of this Agreement Amendment other than consents, authorizations, filings or any promissory notes executed pursuant heretoother acts or consents for which the failure to obtain or make could not, individually or (ii) seeks to prohibit in the ownership or operationaggregate, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(jc) Schedule B (Actuarial Information) After giving effect to this Amendment, the 2004 Annual report (Form 5500 Series) for representations and warranties contained in each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered Loan Documents are true and correct in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penaltiesmaterial respects, except for any such taxes, interest representation and warranty that is qualified by materiality or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except reference to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
, which such representation and warranty are true and correct in all respects, on and as of the date hereof as though made on and as of such date (q) No Subsidiary of other than any Credit Party is party to, such representations or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Partywarranties that, by way of dividendstheir terms, advancesrefer to a specific date, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability in which case as of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(especific date).
(rd) The information, exhibits and reports furnished by the Guarantor No Default or any Event of its Subsidiaries Default shall exist after giving effect to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances madethis Amendment.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, in good standing under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (A) such Credit Party’s charter or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended)regulation, or any material Contractual Obligation or legal restriction, binding on or affecting such Credit Party or any Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of such Credit Party or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is a legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its Subsidiaries as at September 30, 20052006, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 20042005, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2004 2005 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 19352005 (“PUHCA 2005”). Pursuant to PUHCA 2005, as amendedthe Guarantor is subject to the limited jurisdiction of the Federal Energy Regulatory Commission, registered and any state commission with jurisdiction to regulate a public utility company in compliance therewiththe Guarantor’s holding company system, with respect to access to the books and records of the Guarantor and its subsidiaries and affiliates.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower The Credit Parties represent and the Guarantor represents and warrants warrant as follows:
(a) Each of the Borrower and the Guarantor Credit Parties is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, and in good standing under the laws of the State jurisdiction of its incorporationincorporation or formation.
(b) The execution, delivery and performance by each Credit Party of this Amendment and the performance by each Credit Party of its obligations under the Five-Year Credit Agreement, as amended hereby, do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any of the Credit Parties or any of their Subsidiaries to obtain any Governmental Approval not otherwise already obtained or violate any Applicable Law relating to the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powersParties or any of their Subsidiaries, (ii) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws or other organizational documents of the Credit Parties or any of their Subsidiaries or any indenture or other material agreement or instrument to which such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such Person except as could not reasonably be expected to have been duly authorized by all necessary corporate actiona Material Adverse Effect, or (iii) do not contravene (A) such Credit Party’s charter result in or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any material Contractual Obligation or legal restriction, binding on or affecting such Credit Party or any Material Subsidiary, as the case may be, and (iv) do not require the creation or imposition of any material Lien on upon or with respect to any property now owned or hereafter acquired by such Person other than a Lien permitted under the property terms of such Credit Party or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiarythe Loan Documents.
(c) No authorization or approval or Each of the Credit Parties has the right, power and authority and has taken all necessary corporate and other action by, and no notice to or filing with, any Governmental Authority or other Person is required for authorize the due execution, delivery and performance by any Credit Party of this Agreement or any other Amendment and the performance of its obligations the Five-Year Credit Document Agreement, as amended hereby, in accordance with their respective terms. This Amendment has been duly executed and delivered by the duly authorized officers of the Credit Parties and such document constitutes, and each of the Loan Documents does and continues to which any of them is a partyconstitute, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is a the legal, valid and binding obligation of such the Credit PartyParties and, if applicable, each of their Subsidiaries party thereto, enforceable against such Credit Party in accordance with its their respective terms, subject to applicable except as such enforcement may be limited by bankruptcy, insolvency, 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 generally in general and subject to general principles the availability of equity, regardless of whether considered in a proceeding in equity or at lawequitable remedies.
(ed) The consolidated balance sheet Except for matters existing on the Closing Date and set forth on Schedule 7.1(q) to the Five-Year Credit Agreement, as amended hereby, there are no actions, suits or proceedings pending nor, to the knowledge of the Guarantor and its Subsidiaries as at September 30Credit Parties, 2005, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine months then ended, copies of which have been made available threatened against or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 2004, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of affecting the Credit Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party Subsidiary thereof or any of their respective Material Subsidiaries, of all properties in any court or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds before any arbitrator of any Loan hereunder will be used to buy kind or carry before or by any Margin Stock.
(i) No ERISA Event has occurredGovernmental Authority, or is reasonably expected to occur, with respect to any Plan that which could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) Effect or which relate to the 2004 Annual report (Form 5500 Series) for each Plan, copies enforceability of which have been filed with the Internal Revenue Service and made available this Amendment or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940Loan Documents, as amendedamended hereby.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Samples: Five Year Credit Agreement (Jones Apparel Group Inc)
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, in good standing under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (A) such Credit Party’s charter or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended)regulation, or any material Contractual Obligation or legal restriction, binding on or affecting such Credit Party or any Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of such Credit Party or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is a legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its Subsidiaries as at September 30December 31, 20052011, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine months fiscal year then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 20042011, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan or Letter of Credit hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2004 2009 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(po) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(qp) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(rq) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor Credit Parties represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, in good standing under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have Party of this Amendment has been duly authorized by all necessary corporate action, or other organizational action and does not (iiia) do not contravene (A) the terms of such Credit Party’s charter Organization Documents; (b) conflict with or by-laws, as the case may be, result in any breach or contravention of (i) any Contractual Obligation to which such Credit Party is party or (Bii) any laworder, rule injunction, writ or regulation (including, without limitation, the Public Utility Holding Company Act decree of 1935, as amended), any Governmental Authority or any material Contractual Obligation or legal restriction, binding on or affecting arbitral award to which such Credit Party or any Material Subsidiary, as the case may be, and its Property is subject; (ivc) do not require result in the creation of any Lien on the property of (other than Permitted Liens); or (d) violate any Law applicable to such Credit Party and this Amendment, except, in the case of clause (b) or any (d) only, as would not reasonably be expected to have a Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material SubsidiaryAdverse Effect.
(cb) No authorization or approval or other action by, This Amendment has been duly executed and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance delivered by any such Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is a Party. This Amendment constitutes legal, valid and binding obligation obligations of such Credit Party, enforceable against such Credit Party in accordance with its terms, subject except to the extent the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws Debtor Relief Laws affecting creditors’ rights generally and subject to general by equitable principles of equity, law (regardless of whether considered in a proceeding enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(ec) The consolidated balance sheet of the Guarantor and its Subsidiaries as at September 30No approval, 2005consent, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine months then endedexemption, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 2004, there has been no material adverse change in such condition or operationsauthorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the businessexecution, assetsdelivery or performance by, operationsor enforcement against, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party before any courtof this Amendment (other than (a) as have already been obtained and are in full force and effect, governmental agency (b) filings to perfect security interests granted pursuant to this Amendment and (c) approvals, consents, exemptions, authorizations, or other Governmental Authority actions, notices or arbitrator that (taking into account filings the exhaustion of appeals) failure to procure which would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect).
(jd) Schedule B (Actuarial Information) After giving effect to this Amendment, the 2004 Annual report (Form 5500 Series) for representations and warranties contained in each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state Documents and local) required applicable to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for are true and correct in all material respects on and as of the payment thereof in accordance with GAAP.
(p) Each Credit Party date hereof as though made on and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act as of 1935, as amended, and all Environmental Laws), such date except to the extent that any failure such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in compliance, individually all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or in the aggregate, could not reasonably be expected reference to result in a Material Adverse EffectEffect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(qe) No Subsidiary Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender Extension made in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances madeherewith.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, in good standing under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (A) such Credit Party’s charter or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended)regulation, or any material Contractual Obligation or legal restriction, binding on or affecting such Credit Party or any Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of such Credit Party or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is a legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its Subsidiaries as at September June 30, 20052008, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine six months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 20042007, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2004 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor Guarantors represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, and in good standing under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s 's corporate powers, (iii) have been duly authorized by all necessary corporate action, (iiiii) do not contravene (A) such Credit Party’s 's charter or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any material Contractual Obligation or legal restriction, binding on or affecting such any Credit Party or any Material Subsidiary, as the case may be, and (iviii) do not require the creation of any Lien on the property of such any Credit Party or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied foreffect.
(d) Each Credit Document to which any Credit Party is a party is a legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ ' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its Subsidiaries Old NiSource as at September 30, 20052000, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries Old NiSource for the nine months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries Old NiSource as at such date and the results of the operations of Old NiSource for the Guarantor period ended on such date, all in accordance with generally accepted accounting principles consistently applied. The balance sheet of Columbia as at September 30, 2000, and its Subsidiaries the related statements of income and retained earnings of Columbia for the nine months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of Columbia as at such date and the results of the operations of Columbia for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31September 30, 20042000, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbia.
(g) There is no pending or threatened action, action or proceeding or investigation affecting such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant heretoAgreement, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2004 1999 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “"investment company”", or a company “"controlled” " by an “"investment company”", within the meaning of the Investment Company Act of 1940, as amended.
(n) The Guarantor is a “"public utility holding company” " within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.make
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor represents and warrants as follows:
(a) Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, in good standing under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not contravene (A) such Credit Party’s charter or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any material Contractual Obligation or legal restriction, binding on or affecting such Credit Party or any Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of such Credit Party or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is a legal, valid and binding obligation of such Credit Party, enforceable against such Credit Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its Subsidiaries as at September 30, 20052004, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 20042003, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan or Letter of Credit hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2004 2003 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor Guarantors represents and warrants as follows:
(a) Each of the Borrower and the Guarantor Parent Guarantor, and (as of the Effective Date) each of Old NiSource, PAC and CAC, is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, and in good standing under the laws of the State of its incorporation.
(b) The execution, delivery and performance by each of the Credit Parties Parties, PAC and CAC of the Merger Agreement and the Credit Documents to which it is a party (i) are within such Credit Party’s 's or other Person's corporate powers, (iii) have been duly authorized by all necessary corporate action, (iiiii) do not contravene (A) such Credit Party’s 's or other Person's charter or by-laws, as the case may be, or (B) any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any material Contractual Obligation or legal restriction, binding on or affecting such any Credit Party Party, PAC, CAC or any Material Subsidiary, as the case may be, and (iviii) do not require the creation of any Lien on the property of such any Credit Party Party, PAC, CAC or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party Party, PAC, CAC or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any Credit Party of this Agreement or any other Credit Document to which any of them is a party, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied foreffect.
(d) Each of the Merger Agreement and each Credit Document to which any Credit Party Party, PAC or CAC is a party is a legal, valid and binding obligation of such Credit PartyParty or such other Person, as the case may be, enforceable against such Credit Party or such other Person in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ ' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. The Credit Parties have delivered to the Administrative Agent a true and correct copy of the Merger Agreement, and no material condition or other provision of the Merger Agreement has been waived, amended or supplemented except as described on Schedule 4.01(d) or with the prior written consent of the Required Lenders.
(e) The consolidated balance sheet of Old NiSource as at June 30, 2000, and the related statements of income and retained earnings of Old NiSource for the six months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of Old NiSource as at such date and the results of the operations of Old NiSource for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. To the best knowledge of each Credit Party, the balance sheet of the Guarantor and its Subsidiaries Company as at September June 30, 20052000, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries Company for the nine six months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries Company as at such date and the results of the operations of the Guarantor and its Subsidiaries Company for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31June 30, 20042000, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbiathe Company.
(g) There is no pending or threatened action, action or proceeding or investigation affecting such Credit Party Party, PAC, CAC or any Material Subsidiary, before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or or, as of the Initial Credit Event Date, that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant heretoAgreement, or (ii) seeks to challenge, or to prohibit, the consummation of the Transactions or to prohibit the ownership or operation, by any Credit Party Party, the Company, PAC or CAC, or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Parent Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2004 Annual 1998 annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Parent Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Parent Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “"investment company”", or a company “"controlled” " by an “"investment company”", within the meaning of the Investment Company Act of 1940, as amended.
(ni) The Guarantor Until the Effective Time: (A) neither New NiSource nor the Borrower is a “"public utility holding company” " within the meaning of the Public Utility Holding Company Act of 1935, as amended; and (B) Old NiSource is such a public utility holding company, but is exempt from registration under such Act pursuant to an order under Section 3(a)(1) of such Act dated February 10, 1999; (ii) at the Effective Time, the Parent Guarantor will have obtained all necessary approvals for the execution and delivery of, and the performance of its obligations under, the Credit Documents; and (iii) within 5 Business Days after the Effective Time, the Parent Guarantor will be a "public utility holding company" within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor Credit Party represents and warrants as follows:of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):
(a) Each of the Borrower and the Guarantor is a corporation The Credit Parties (i) are Persons duly organized, validly existing and, and (to the extent such concept is applicable in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, such jurisdiction) in good standing under the laws of the State jurisdictions of its incorporationtheir respective organization, (ii) are duly qualified and in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, 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 (iii) have all corporate power and authority to own or lease 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 each Credit Party of this Agreement and the Note, and the consummation of the Credit Parties of the Credit Documents to which it is a party (i) transactions contemplated hereby or thereby, are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) and do not contravene (Ai) such Credit Party’s charter or by-lawslaws (or similar organizational documents), as the case may be, or (Bii) any law, statute, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any order, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material Contractual Obligation contract, loan agreement, indenture, mortgage, deed of trust, lease or legal restriction, other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any Material Subsidiary, as the case may be, and (iv) do not require the creation of any Lien on the property of such Credit Party its properties or any Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiaryassets.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by any the Credit Party Parties of this Agreement or any other Credit Document to which the Note, or for the consummation of any of them is a partythe transactions contemplated hereby or thereby, except for such as (i) as have been obtained or made and that are in full force and effect or effect, (ii) are not presently as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under applicable law the Foreign Exchange and have not yet been applied forForeign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee.
(d) Each Credit Document to which any This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party is a party is a in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of such each Credit PartyParty in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with its their respective terms, subject except to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and subject to or by general principles of equity, regardless of whether considered in a proceeding in equity or at lawsimilar principles under Japanese practice.
(e) The consolidated Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at September 30December 31, 20052007, and the related Consolidated statements of income and retained earnings cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the nine months fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period 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.
(f) Since December 31, 2004, there has been no material adverse change in such condition All written information and reports furnished by or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of Columbiaa material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or or, to the knowledge of the Credit Parties, threatened action, proceeding suit, investigation, litigation or investigation proceeding, including, without limitation, any Environmental Action, affecting such Credit Party any member of the Group before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appealsa) would could be reasonably likely to have a Material Adverse Effect, Effect or that (ib) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any consummation of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assetsthe transactions contemplated hereby.
(h) The Guarantor and its Subsidiaries, taken as a whole, do Borrower is not hold engaged in the business of extending credit for the purpose of purchasing or carry Margin Stock having an aggregate value in excess carrying “margin stock” (within the meaning of 10% Regulation U of the value Board of their consolidated assetsGovernors of the Federal Reserve System), and no part proceeds of the proceeds of any Loan hereunder will be used to buy purchase or carry any Margin Stockmargin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to member of the 2004 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party Group is an “investment company”, or a company an “controlledaffiliated person” by of, or “promoter” or “principal underwriter” for, an “investment company”, within the meaning of ” (each as defined in the Investment Company Borrower Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Samples: Credit Agreement (International Flavors & Fragrances Inc)
Representations and Warranties of the Credit Parties. Each of the Borrower and the Guarantor Credit Party represents and warrants to each of the other parties hereto that as follows:of the Closing Date (except to the extent that any such representation or warranty relates to an earlier date):
(a) Each of the Borrower Such Credit Party and the Guarantor each subsidiary thereof (i) is a corporation duly organized, validly existing and, in the case of the Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, and is in good standing under the laws of the State jurisdiction of its incorporation.incorporation or organization, (ii) has the corporate or other necessary 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 currently engaged, and (iii) is duly qualified as a foreign entity and is in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, other than in such jurisdictions where the failure to be so qualified and in good standing would not be reasonably expected to have a Material Adverse Effect;
(b) The execution, execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the Credit Parties of the Credit Documents to which it is a party (i) other applicable Operative Agreements are within such the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate actioncorporate, partnership or limited liability company (iii) do not contravene (A) such Credit Party’s charter or by-laws, as the case may be, or ) action on the part of each Credit Party (B) including without limitation any law, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amendednecessary shareholder action), or have been duly executed and delivered, have received all necessary governmental approval, and do not and will not (i) violate any material Contractual Obligation or legal restriction, Legal Requirement which is binding on or affecting such any Credit Party or any Material Subsidiaryof its Subsidiaries, as (ii) contravene or conflict with, or result in a breach of, any provision of the case may beArticles of Incorporation, and (iv) do not require the creation By-Laws or other organizational documents of any Lien on the property of such Credit Party or any Material Subsidiary under of its Subsidiaries or of any Contractual Obligation agreement, indenture, instrument or other document which is binding on or affecting such any Credit Party or any Material Subsidiary.of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) No authorization or approval or This Agreement and the other action byapplicable Operative Agreements, executed prior to and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance as of such date by any Credit Party of this Agreement or any other Credit Document to which any of them is a partyParty, except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is a constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party Party, as applicable, in accordance with its their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its Subsidiaries as at September 30, 2005, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 2004, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (taking into account the exhaustion of appeals) would have a Material Adverse Effect, or that (i) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2004 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) . Each Credit Party has filed all tax returns (Federal, state and local) executed the various Operative Agreements required to be filed executed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.date;
Appears in 1 contract
