Representations and Warranties by the Borrower. The Borrower makes the following representations and warranties as the basis for its covenants in this Agreement: (a) The Borrower is a corporation duly incorporated under the laws of the State of Illinois, is in good standing and duly authorized to conduct its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”). (b) The execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument. (c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination. (d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis. (e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement. (f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable. (g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable. (h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement. (i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements. (j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties by the Borrower. The Borrower makes the following representations represents and warranties as the basis for its covenants in this Agreementwarrants that:
(a) The Borrower is a corporation duly incorporated organized and validly existing under the laws of the State of Illinois, is in good standing Ohio and duly authorized to conduct its do business in as a foreign corporation under the State laws of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”)Colorado.
(b) The Borrower has the power and authority and has been duly authorized to enter into the Bond Documents to which the Borrower is a party, and perform all of the Borrower's obligations thereunder, and no approval or other action by any governmental authority or agency or other person is required in connection therewith except such as have been obtained as of the date of execution and delivery hereof, or, which relate to the renovation or construction of the Project and cannot reasonably be obtained by such date.
(c) The willingness of the Issuer to issue the Series 2001 Bonds for purposes of financing costs of the Project has induced the Borrower to locate the Project within the boundaries of the Issuer.
(d) The Project will create or preserve jobs and employment opportunities within the boundaries of the State and the Issuer, thereby improving the economic prosperity and general welfare of the State and the Issuer.
(e) The Borrower is not subject to any contractual or other limitation or provision of any nature whatsoever which in any way limits, restricts or prevents the Borrower from entering into the Bond Documents to which the Borrower is a party, or performing any of the Borrower's obligations thereunder; and the execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of Bond Documents to which the Borrower Agreementsis a party, the Borrower’s consummation of the transactions contemplated on its part thereby, nor and the Borrower’s fulfillment of or compliance with the terms and conditions thereof will not conflict with or result in a breach of the terms, conditions or provisions of the Borrower's Articles of Incorporation, Code of Regulations, or actions of its shareholders, Board of Directors or any committee thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach other corporate organizational document nor of any material restriction, agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent)is bound, or constitutes a material default (of any law or would regulation, or of any writ, order or decree of any court or governmental agency, or constitute a material default with due notice or the passage of time or both) under any such material agreement of the foregoing, or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined result in the Environmental Act. No portion creation or imposition of any lien, charge or encumbrance upon any of the Project includes any property used properties or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution and delivery assets of the Borrower Agreements or which would in pursuant to the terms of any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In additionforegoing, except as described in contemplated by the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge terms of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official StatementBond Documents.
(f) The information used in Bond Documents to which the preparation of the financial statements referred to in paragraph (e) aboveBorrower is a party have been duly authorized, this Agreement, the Tax Certificate executed and Agreement and any other written statement furnished delivered by the Borrower and constitute legal, valid and binding obligations of the Borrower in accordance with their respective terms.
(g) The acquisition, renovation, construction, equipping, installation and operation of the Project will comply with all applicable zoning, planning, building, environmental and other regulations of the governmental authorities having jurisdiction of the Project, and all necessary permits, licenses, consents and permissions necessary for the Project have been or will be obtained.
(h) Except as disclosed to the Authority (including Letter of Credit Bank, there are no actions, suits or proceedings pending, or to the descriptions and information contained knowledge of the Borrower threatened, against or affecting the Borrower before any court or before any governmental or administrative body or agency which might result in any material adverse change in the Official Statement relating operations, business, property, assets or condition (financial or otherwise) of the Borrower; and the Borrower is not in default with respect to or under any applicable statute, rule, writ, injunction, decree, order or regulation of any governmental agency which might have consequences that would materially and adversely affect the operations, business, property or assets of the Borrower. The Borrower does not control, and is not controlled by, the Letter of Credit Bank.
(i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application In connection with any lease or grant by the Borrower of the proceeds to be received by it from the loan use of the proceeds Project, the Borrower shall require that the lessee or user of sale any portion of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do Project shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light use that portion of the circumstances under Project in any manner which they were made, not misleading. There is no fact which would violate the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained covenants set forth in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Regulatory Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Sources: Loan Agreement (Peco Ii Inc)
Representations and Warranties by the Borrower. The Borrower makes the following representations represents and warranties warrants as the basis for its covenants in this Agreementfollows:
(a) The Borrower is a corporation corporation, duly incorporated organized, validly existing and in good standing under the laws of the State of IllinoisDelaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing and duly authorized to conduct its business in standing, wherever such qualification is required, including the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”)State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution and nor delivery of the Borrower Agreements on Documents, nor the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part hereby or thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any material of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent)bound, or constitutes a material default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Plant.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would constitute have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower’s knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Plant does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a material default technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with due notice another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity, organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both) under any , would constitute an Event of Default hereunder, specifying the nature and period of existence of such material agreement event and the actions being taken or instrumentproposed to be taken with respect thereto.
(cl) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of working capital constituting the Project includes any property used or to will be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily solely in connection with any part the Borrower’s operation of the program Plant or to pay costs of a school or department issuance of divinity for any religious denominationthe Bonds.
(do) No litigation, proceedings or investigations are There is not now pending or, to the knowledge of the Borrower, threatened in writing threatened, any suit, action or proceeding against or affecting the Borrower seeking by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to restrainthe Borrower, enjoin or in any way limit the approval or execution would materially and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence validity of any of the transactions contemplated by this Loan Agreement or powers the Indenture, or impair the ability of the Borrower to enter into and carry out the transactions described in or contemplated by perform its obligations under this Loan Agreement or the executionIndenture, deliveryor as contemplated hereby or thereby, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending ornor, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basisis there any basis therefor.
(ep) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity Project is of the Borrower for each of type authorized and permitted by the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008Act, and the consolidated balance sheet as of March 31, 2008, all included in Project is substantially the Official Statement, fairly present same in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated to that described in the notes thereto andnotice of public hearing published in The Darlington News and Post on June 1, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement1994.
(fq) The information used in the preparation of the financial statements referred to in paragraph Plant is located wholly within Darlington County, South Carolina.
(er) above, this Agreement, the Tax Certificate and Agreement and The Borrower will not take any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact action or omit to state a material fact necessary take any action or permit any action which is within its control to make be taken or omitted which would impair the statements contained therein or in this Agreement, in light excludability from gross income for federal income taxation purposes of interest on the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payableSeries 1994A Bonds.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Sources: Loan Agreement (RBC Bearings INC)
Representations and Warranties by the Borrower. The Borrower makes the following representations and warranties as the basis for its covenants in this Agreementherein:
(a) The Borrower is a corporation limited liability company duly incorporated created and existing under the laws of the State of IllinoisDelaware, is in good standing and duly authorized to conduct its business in the State of IllinoisState, is duly authorized and has full power under the laws of the State and all other applicable laws provisions of law and its restated articles of incorporation and by-laws organizational documents to create, issue, enter into, execute and deliverdeliver the, as the case may be, this Bond Purchase Agreement, the Tax Certificate and Exemption Agreement, this Loan Agreement, the Purchase ContractBond Collateral Documents to which it is a party and all action on its part necessary for the valid execution and delivery of, the Initial Reimbursement this Loan Agreement, the Remarketing Tax Exemption Agreement, the Supplemental Borrower Indenture Bond Purchase Agreement and the Borrower Bonds (collectively, the “Borrower Agreements”)Bond Collateral Documents to which it is a party have been duly and effectively taken.
(b) The execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreementsthis Loan Agreement, the Borrower’s Tax Exemption Agreement, the Bond Purchase Agreement, the Bond Collateral Documents to which it is a party, the consummation of the transactions contemplated on its part therebyherein and therein, nor and the Borrower’s fulfillment of or compliance with the terms and conditions thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts hereof and thereof do not and will not conflict with or results result in a material breach of any material of the terms or conditions of any partnership restriction or of any agreement or instrument to which the Borrower or any Affiliate is now a party party, and do not and will not constitute a default under any of the foregoing, or by which it is bound (except for result in the creation or imposition of any such breaches for Lien of any nature upon any of the Property of the Borrower, including Property which the Borrower subsequently acquires, except for Permitted Liens; the Borrower has obtained a waiver or a required consent)good and marketable title to its Property, and will have good and marketable title to the Expansions, including the Project, in each case free and clear of all Liens whatsoever except Permitted Liens; the easements, rights-of-way, Liens, encumbrances, covenants, conditions, restrictions, exceptions, minor defects, irregularities of title and encroachments on adjoining real estate, if any, now existing with respect to the real property do not and will not materially adversely affect the value of the Facilities, materially impair the same, or constitutes a material default (materially impair or would constitute a material default materially interfere with due notice the operation and usefulness thereof for the purpose for which it was acquired or are held by the passage Borrower; the Facilities are located upon the real property described in the Subordinate Mortgage; to the best of time the Borrower’s knowledge, the Facilities do not and will not violate any applicable zoning land use, environmental or both) under any such material agreement similar law or instrumentrestriction; and the recitals of fact and statements contained in this Loan Agreement with respect to the Borrower are true.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at Borrower has all necessary licenses and permits to occupy and operate the electric generating plants listed in Exhibit A to this AgreementFacilities other than the Expansions, and (ii) including the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denominationProject.
(d) No Except as specifically described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened against the Borrower, except (i) litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in writing the opinion of counsel to the Borrower, will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or self insurance reserves and (ii) litigation in which, in the opinion of counsel to the Borrower, an adverse determination would not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower. In addition, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements Official Statement, the issuance, delivery or validity of the Series 2007A Bonds, or the execution, delivery or validity of the Bond Indenture, this Loan Agreement, the Tax Exemption Agreement, the Bond Purchase Agreement, the Series 2007A Bonds, the Bond Collateral Documents, or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge terms and provisions of the BorrowerSeries 2007A Bonds, threatened in writing against the BorrowerTax Exemption Agreement, except litigationthe Bond Purchase Agreement, proceedings this Loan Agreement or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basisBond Collateral Documents.
(e) The (i) consolidated statements of income, cash flows Borrower is a limited partnership organized and changes in shareholders’ equity existing under the laws of the State of Delaware.
(f) The financial information with respect to the Borrower for each of and any Affiliate included in the fiscal years ended December 31Preliminary Official Statement, 2005dated August 20, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLPas supplemented by an addendum dated October 1, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 20082007, and the consolidated balance sheet as of March 31Official Statement dated October 9, 2008, all included in 2007 (the “Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii”), both relating to the absence of certain notes and subject to year-end adjustments; Series 2007A Bonds is correct, and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized Official Statement, except as expressly disclosed in the Official Statement.
(fg) The Borrower has not heretofore engaged in, and the consummation of the transactions herein provided for and compliance by the Borrower with the provisions of this Loan Agreement, the Bond Indenture, the Series 2007A Bonds, the Tax Exemption Agreement and the Bond Collateral Documents will not involve, any prohibited transaction within the meaning of Section 4975 of the Code.
(h) The information used set forth in the preparation of the financial statements referred to in paragraph (e) above, this Loan Agreement, the Tax Certificate and Exemption Agreement and any other written statement (including the Official Statement) furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do Issuer does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were made, herein not misleading. There is no fact which the The Borrower has no knowledge of any fact not disclosed to the Authority Issuer in writing or in the Official Statement which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basisBorrower, its ability to own and operate its Property or the Borrower’s its ability to make the payments under this Loan Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(hi) The representations representations, warranties and certifications covenants contained in the Tax Certificate and Exemption Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreementcorrect as of such date.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower makes the following representations represents and warranties warrants as the basis for its covenants in this Agreementfollows:
(a) The Borrower is a corporation corporation, duly incorporated organized, validly existing and in good standing under the laws of the State of IllinoisDelaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing and duly authorized to conduct its business in standing, wherever such qualification is required, including the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”)State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution and nor delivery of the Borrower Agreements on Documents, nor the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part hereby or thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any material of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent)bound, or constitutes a material default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would constitute have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower’s knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a material default technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with due notice another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both) under any , would constitute an Event of Default hereunder, specifying the nature and period of existence of such material agreement event and the actions being taken or instrumentproposed to be taken with respect thereto.
(cl) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreementlocated wholly within Darlington County, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denominationSouth Carolina.
(do) No litigation, proceedings or investigations are There is not now pending or, to the knowledge of the Borrower, threatened in writing threatened, any suit, action or proceeding against or affecting the Borrower seeking by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to restrainthe Borrower, enjoin or in any way limit the approval or execution would materially and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence validity of any of the transactions contemplated by this Loan Agreement or powers the Indenture, or impair the ability of the Borrower to enter into and carry out the transactions described in or contemplated by perform its obligations under this Loan Agreement or the executionIndenture, deliveryor as contemplated hereby or thereby, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending ornor, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basisis there any basis therefor.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Sources: Loan Agreement (RBC Bearings INC)
Representations and Warranties by the Borrower. The Borrower ---------------------------------------------- hereby makes the following representations and warranties and acknowledges and agrees that each and every one of the following representations and warranties shall survive closing and shall continue for as long as the basis for its covenants in this AgreementLoan remains outstanding:
(a) The Borrower is has been duly organized and validly exists as a corporation duly incorporated under the laws of the State of IllinoisNew Jersey, is in good standing has power to enter into this Direct Loan Agreement and duly authorized the Note evidencing the debt obligation of the Borrower to conduct its business in the State of Illinois, is duly authorized Authority hereunder and has full power under authorized the taking of all applicable laws action necessary to carry out and its restated articles of incorporation and by-laws give effect to create, issue, enter into, execute and deliver, as the case may be, transactions contemplated by this Direct Loan Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The There is no action or proceeding pending or threatened against the Borrower before any court or administrative agency that might adversely affect the ability of the Borrower to perform its obligations under this Direct Loan Agreement and all authorizations, consents and approvals of governmental bodies or agencies, required in connection with the performance of the Borrower's obligations hereunder have been obtained and will be obtained whenever required hereunder or by law.
(c) Neither the execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreementsthis Direct Loan Agreement, the Borrower’s consummation of the transactions contemplated on its part therebyhereby, nor the Borrower’s fulfillment fulfilment of or compliance with the terms and conditions thereofof this Direct Loan Agreement is prevented, violates the restated articles of incorporation or limited by-laws of the Borrower , or conflicts with or results in a material breach of, the terms, conditions, or provisions of any material corporate restrictions or any evidence of indebtedness, agreement or instrument of whatever nature to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent)bound, or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denominationforegoing.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution All tax returns and delivery reports of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of required by law to be filed have been duly filed and all taxes, assessments, fees and other governmental charges upon the Borrower or upon any of its respective properties, assets, income or franchises which are due and payable pursuant to enter into such returns and carry out the transactions described in reports, or contemplated by or the execution, delivery, validity or performance pursuant to any assessment received by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings have been paid other than those which may be presently payable without penalty or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basisinterest.
(e) The (i) consolidated statements Borrower has, or will have, title to all the Collateral whenever acquired or arising free and clear of incomeall liens and claims, cash flows encumbrances, set-offs, defenses and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firmcounterclaims, and has not made and will not make any assignment, pledge, mortgage, hypothecation or transfer (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included other than sales or leases in the Official Statement, fairly present in all material respects ordinary course of business) of any such Collateral or the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause proceeds thereof.
(ii), the absence of certain notes and subject to year-end adjustments; and there f) There has been no material adverse change in the aggregate assets or aggregate liabilities or in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower delivered to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in connection with this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Direct Loan Agreement, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance All statements, representations and warranties made by the Borrower in its application to the Authority, and any materials furnished in support of the request for Authority financial assistance and this Direct Loan Agreement are true. It is specifically understood by the Borrower that all such statements, representations and warranties shall be deemed to have relied upon the Authority as an inducement to make the Loan and that if any such statements, representations or warranties were materially false at the time they were made or are breached during the term hereof, the Authority may, in its sole discreation, consider any such misrepresentation or breach an event of default including without limitation, the Borrower's representation that it would not have been able to proceed with the provisions of Project without financial assistance from the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicableAuthority.
(h) The representations and certifications contained chief executive office of the Borrower is located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇. None of the Borrower's books or records are maintained at any other location. The Borrower shall notify the Authority in writing of any change in the Tax Certificate and Agreement and location of the Project Agreement and Certificate are true and correct, and are incorporated by reference in this AgreementBorrower's chief executive office.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds represents to the Trustee as assignee Authority that it has at all times pertinent to this Direct Loan Agreement been represented by advisors of its own selection, including but not limited to attorneys-at-law and/or certified public accountants; that it has not relied upon any statement, representation, warranty, agreement or information provided by the Authority. No further , its employees, agents or additional approvalattorneys; that it acknowledges that it is informed by its advisors of its respective rights, authorization duties, and obligations with respect to the Loan under all applicable laws, that is has no set-offs, defenses or consent of any governmental or public agency or authority counterclaims against the Authority with respect to the Loan, and that it is required indebted to the Authority for the amounts stated in connection with the execution and delivery by the Borrower of the Borrower Agreementsthis Direct Loan Agreement.
(j) The Borrower further acknowledges and agrees that the Authority has made no statements, representations, warranties, agreements or provided information contained to it in order to induce the execution of this Direct Loan Agreement. Borrower further acknowledges and agrees that all agreements of the parties are set forth in this Direct Loan Agreement or in the written financing documents relating executed by Borrower prior to or on even date hereof.
(k) If during any time the Project and Loan remains outstanding, the use Borrower becomes aware of any facts, occurrences, information, statements, or events that render any of the proceeds of the Original Bondsforegoing representations or warranties herein made untrue or materially misleading or incomplete, the Prior Bonds and the Bonds provided by the Borrower to shall immediately notify the Authority and bond counsel for the Bonds is true and correct in all material respectswriting of such facts, occurrences, information, statements or events.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower makes hereby represents and warrants to the following representations and warranties Lender as the basis for its covenants in this Agreementfollows:
(a) 5.1 The Borrower is a corporation duly incorporated under the Government of the Republic of Cameroon represented by the Ministry of Economy, Planning and Regional Development of Cameroon and has full power, authority and legal rights to borrow the Facility on the terms and conditions hereunder.
5.2 All authorizations, acts and procedures necessary for the signing and performance of this Agreement have been completed and are in full force and effect.
5.3 The Borrower has completed all the acts and procedures as required by the laws of the State of Illinois, is Borrower’s Country in good standing order for this Agreement to constitute valid and duly authorized to conduct its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The execution and delivery legally binding obligations of the Borrower Agreements on in accordance with its terms, including obtaining all the approvals and authorizations from relevant authorities of the Borrower’s part have been duly authorized by all necessary corporate actionCountry, and neither effecting all the registrations or filings as required by the laws of the Borrower’s execution Country, and delivery of the Borrower Agreementssuch approvals, the Borrower’s consummation of the transactions contemplated on its part therebyauthorizations, nor the Borrower’s fulfillment of or compliance with the terms registrations and conditions thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results filings are in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrumentfull force and effect.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at 5.4 As from the electric generating plants listed in Exhibit A to date on which this AgreementAgreement becomes effective, this Agreement constitutes legal, valid and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) No litigation, proceedings or investigations are pending or, to the knowledge binding obligation of the Borrower.
5.5 The Borrower is not in default under any law or agreement applicable to it, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution consequence of which default could materially and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower its ability to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held perform its obligations under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement no Event of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances Default has occurred under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) 5.6 The Borrower has obtained the approval and authorization signing of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower constitute, and the Borrower’s performance of its obligations under this Agreement will constitute commercial acts. The Borrower is subject to the general jurisdiction of civil and business laws. Neither the Borrower Agreements.
nor any of its assets or revenues is entitled to any immunity or privilege (jsovereign or otherwise) from any set-off, arbitration awards, execution, attachment or other legal process. The information contained in the written documents relating Borrower represents and warrants to the Project Lender that the foregoing representations and warranties will be true and accurate throughout the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower Maturity Period with reference to the Authority facts and bond counsel for the Bonds is true and correct in all material respectscircumstances subsisting from time to time.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower makes hereby declares, represents and warrants on a continuing basis that:
a) Borrower is aware that RCFL is granting the following Loan on the basis of the Loan Application made by him/her/it for the purchase of the Car/Hypothecated Asset(s) and on the faith of the representations made by the Borrower and believing the same to be true.
b) All the necessary approvals for availing of the Loan have been obtained and that the Borrower will at all times till the amounts due to RCFL are paid in full and the Loan is fully repaid, keep all such permissions valid and subsisting.
c) The officer of the Borrower executing this Agreement and the documents executed in pursuance hereof, are duly and properly in office and fully authorized to execute the same.
d) This Agreement and the documents to be executed in pursuance hereof, when executed and delivered, will constitute valid and binding obligations of the Borrower.
e) It has not taken any corporate action nor have any steps been taken or legal proceedings been initiated or threatened against the Borrower for its insolvency, bankruptcy, liquidation, winding up, dissolution, administration, reorganization or for appointment of receiver, administrator of the Borrower or all or any of its assets or undertakings.
f) As of the date of this Agreement, there is no litigation, proceedings or disputes pending or threatened against the Borrower, the adverse determination of which might substantially, affect the Borrower's ability to repay the Loan as described in the Schedule hereto or have a Materially Adverse Effect on the financial condition of the Borrower.
g) The execution and delivery of this Agreement and the performance of its obligations hereunder does not:
i) contravene any Applicable Law, statute or regulation or any judgment or decree to which the Borrower or its property is subject.
ii) conflict or result in any breach of any covenants, conditions and stipulation under any existing agreement, to which the Borrower is a party or by which its property is bound;
iii) if the Borrower is a Company, conflict or contravene any provision of constitutional documents including the Memorandum and Articles of Association of the Borrower;
h) The Borrower shall ensure that each of the Loans is within and not in excess of the 'Loan to Value' ratio of the Lender as per Lender's internal policies and shall therefore furnish and submit to the Lender all correct, complete and genuine information in relation to the price and cost of the Car.
i) There has been no Material Adverse Effect to in the financial condition of the Borrower, nor has any event which is prejudicial to the interest of RCFL taken place since the date of latest audited financials of the Borrower which is likely to materially and/or adversely affect the liability of the Borrower to perform all or any of the obligations under this Agreement.
j) The information given in the Application Form and end use of funds letter and any prior or subsequent information provided or explanation furnished to the Lender in this behalf are true, complete and accurate in every respect.
k) The Purpose for which the Loan is taken is not illegal, speculative or nefarious.
l) The Borrower assures that subsequent to the application there has been no material change, which would adversely affect the Lender and/or the provision of Loan by the Lender to the Borrower.
m) The Borrower is not aware of any document, judgement or legal process or other charges or of any latent or patent defect affecting the title of the Car/property or of any material defect in the Car/property which has remained undisclosed and/or which may affect the Lender prejudicially.
n) The Borrower has paid or will pay fully and timely, when due, all public demands such as income tax, property taxes and all the other Taxes and revenues payable to the Government or to any local authority and that at present there are no arrears and/or default whatsoever of such Taxes and revenues due and outstanding and shall be no arrears and/or default whatsoever in relation to the same.
o) The Borrower has disclosed/furnished all facts/information to the Lender in respect of the Loan and all information in the Loan Application or in any supporting documents or otherwise howsoever is absolutely true, correct and complete in all respects and that no fact or information necessary to be furnished by the Borrower has been omitted to be stated in order to induce the Lender to provide the Loan
p) The Borrower does not violate any covenant, conditions or stipulations under any existing agreements entered into by the Borrower with any party, by availing the Loan from the Lender.
q) The Borrower assures that all the necessary approvals for availing the Loan and creating the Security/Securities have been obtained or shall be obtained.
r) The Borrower is entitled and empowered to borrow the Loan, provide the security documents, execute the promissory notes, if any, and all other documents and papers in connection with and upon execution of the same will create legal and binding obligations on the Borrower enforceable in accordance with their respective terms.
s) The Borrower confirms that the representations and warranties contained herein shall be deemed to be repeated by the Borrower on and as of each day from the basis for date of this Agreement until all sums due or owing hereunder by the Borrower to the Lender have been paid in full, as if made with reference to the facts and circumstances existing on such day.
t) The Borrower is the sole and absolute legal and beneficial owner of the Car/ Hypothecated Assets.
u) In case the Borrower is a company, the Borrower is a body corporate duly constituted under the laws of India;
v) In case the Borrower is a company, it is competent to contract within the meaning of the Indian Contract Act, 1872 and that there is no impediment to its covenants in capacity to enter into contracts and it has the power to enter into, deliver and perform its obligations under this Agreement:;
(a) The Borrower (i) is a corporation major, of sound mind, solvent and competent to contract (where the Borrower is an individual including partners in a partnership firm); (ii) is a trust/society/partnership firm/HUF/LLP/other body corporate (as mentioned in the Schedule hereto) duly constituted, incorporated or registered and validly existing and licensed to do business under the laws Applicable Law and can ▇▇▇ and be sued as such; (iii) the Borrower (if an individual) or each of the State of Illinoispartners (in case the Borrower is a partnership firm), is a (a) citizen of India; (b) the partners' rights against the firm with respect to any loan or money granted by the partners to the firm or with respect to any such transactions shall always be subordinate to the right of the Lender for the Loan granted to the Borrower under this Agreement; (c) The partner signing this Agreement on behalf of the firm is the designated partner of the firm and is authorized under the partnership agreement signed between the partners of the firm to do all the acts, matters and things including executing this Agreement for availing the Loan on behalf of the firm and creating Security as contemplated in good standing terms hereof; (iv) where the Borrower is a HUF, the Borrower declares and duly authorized to conduct its business in confirms, that the State borrowing is for the purposes and benefit of Illinois, is duly authorized and has full power under all applicable laws the HUF and its restated articles co-parceners.
x) No application has been filed by any Person, before any forum under the IBC, no resolution of incorporation and by-laws to create, issue, enter into, execute and deliverdirectors or of members or declaration of partners, as the case may be, this Agreementhas been made, for the Tax Certificate and Agreement, purposes of/ towards/recommending filing of any proceedings or application for initiation of insolvency resolution process or fast track resolution process or voluntary liquidation process or fresh start process or bankruptcy or any kind of insolvency/resolution/liquidation/bankruptcy process by whatever name called in relation to the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”)Borrower.
(by) The execution and delivery true copies of the Borrower Agreements on document submitted for the purpose of the Loan are genuine. The Lender may at any time, call for or require verification of originals of any/all such copies. Any such copy in possession of the Lender shall be deemed to have been given only by the Borrower’s part have been duly authorized by all necessary corporate .
z) There is no action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) No litigationsuit, proceedings or investigations are investigation pending or, to the knowledge of the Borrower, threatened in writing is threatened, by or against the Borrower seeking to restrain, enjoin before any court of law or in Government Authority or any way limit the approval or execution and delivery of the Borrower Agreements or other competent authority which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not might have a material adverse effect Material Adverse Effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iiiBorrower or which might put into question the validity or performance of this Agreement or any of its terms and conditions.
aa) the application by In case of the Borrower being an HUF, the subject matter of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in entering into the Official Statement) do not contain any untrue statement of a material fact obligations hereunder or omit to state a material fact necessary to make pursuant hereto including the statements contained therein or in this Agreement, in light borrowing of the circumstances Loan under which they were madethis Agreement and the Purpose thereof (i.e. purchase of the Car) as also creating of Security over the Asset(s) for securing inter alia the Borrower's Dues, not misleading. There is no fact which for legal necessity and/or benefit of estate of the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition HUF.
bb) In case of the Borrower being an HUF, either all the adult members/coparceners of HUF have signed, executed and delivered this Agreement and other Transaction Documents or the Karta has the full authority from all the adult members of the HUF to (for and on behalf of the HUF as also on their behalf in personal capacity) to sign, execute and deliver this Agreement and other Transaction Documents, and to enter into the obligations mentioned thereunder and pursuant thereto and the Karta has accordingly signed, executed and delivered this Agreement and other Transaction Documents for and on behalf of the HUF as well as on behalf of the Karta and each of the members/coparceners of HUF in their personal capacity.
cc) In case of the Borrower being an HUF, the Karta and each of the other members of the HUF, shall in addition to the HUF, be personally and fully liable, on a consolidated basis, or joint and several basis to the Lender for the Borrower’s ability to make payments 's Dues and for performance of the obligations of the Borrower under this Agreement when and as the same become due and payableother Transaction Documents.
(gdd) Compliance No demand notice under IBC or the SARFAESI Act or any other has been issued to the Borrower.
ee) All contracts, agreements and arrangements entered into by the Borrower with its respective Affiliates are on arm's length basis and all terms of such contracts, agreements and arrangements are in accordance with the provisions acceptable commercial practices, and none of such contracts, agreements and arrangements shall result in Material Adverse Effect. The Borrower is not party to any contracts or agreements or arrangements with any of its Affiliates under which there are any outstanding obligations or liabilities except in ordinary course of business and in accordance with acceptable commercial practices or as expressly permitted under the Borrower Agreements will not involveterms of this Agreement. However, in the event that it is discovered or made known to the extent applicableLender on any such transaction, the Lender's determination of whether any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974arrangement/ contract/ agreement is in accordance with acceptable commercial terms or not, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by shall be final and binding on the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(iff) The Borrower has obtained the approval shall preserve and authorization maintain its legal status and existence and shall be engaged only in such activities as stated in its constitutional documents and shall procure and keep valid all clearances required under Applicable Law for maintenance of the Illinois Commerce Commission to borrow money, enter into loan agreements its existence and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance conduct of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreementsits business.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Sources: Car Loan Agreement
Representations and Warranties by the Borrower. The Borrower makes the following representations and warranties as the basis for its covenants in this Agreementherein:
(a) The Borrower is a corporation duly incorporated under the laws of the State of Illinois, is in good standing and duly authorized to conduct its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreementhereto, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- self-insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them thereon of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those said dates, and the results of the operations of the Borrower for each of those such periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, 2007 from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement herein and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreementherein, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement herein sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (herein sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreementherein.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower makes represents and warrants to the Lender and the Agent that each of the following representations matters is true and warranties correct as of the basis for date of this Agreement and the Drawdown Date. The Borrower shall immediately provide notice in writing to the Agent in accordance with item (2) of Clause 18.2 in the event any of the facts set out in the following items are found to have been untrue or incorrect. This Clause 17 shall remain in full effect until the Borrower completes the performance of all its covenants in obligations and liabilities under this Agreement:. The Borrower shall indemnify the Lenders and the Agent for all losses and expenses directly incurred by them which are directly caused by any of the following items being found to be untrue except in cases of the gross negligence or willful misconduct of the Agent or any Lender.
(a1) The Borrower is a corporation stock company duly and validly incorporated and validly existing under the laws of Japan.
(2) The Borrower holds both the State capacity to hold rights and capacity to act required for the execution and performance of Illinoisthis Agreement, is in good standing and duly authorized all procedures required for the same by Laws and Regulations applicable to conduct the Borrower, its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws other internal regulations have been completed.
(3) The execution and performance of this Agreement by the Borrower and transactions associated herewith do not result in (i) any violation of the Laws and Regulations binding the Borrower (except minor violation thereof); (ii) any breach of the Borrower’s articles of incorporation or its other internal regulations (except minor breach thereof), and (iii) any breach of agreements entered into by the Borrower with third parties (excluding the Existing Senior Loan Agreement and the agreements to create, issue, enter into, execute create the Existing Securities) which bind the Borrower or its assets to the extent a breach thereof would have a material adverse effect on the Borrower's performance of its payment obligations under this Agreement.
(4) The person who signed or attached his/her name and deliver, seal to this Agreement on behalf of the Borrower is fully authorized to sign or attach his/her name and seal to this Agreement as the case may be, this Agreementrepresentative of the Borrower by all procedures required by the Laws and Regulations applicable to the Borrower, the Tax Certificate articles of incorporation and Agreementother internal regulations of the Borrower.
(5) (Intentionally Deleted)
(6) This Agreement constitutes legal, valid and binding obligations of the Purchase ContractBorrower, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and is enforceable against the Borrower Bonds in accordance with the terms thereof (collectivelysubject to restrictions under bankruptcy law (▇▇▇▇▇ ▇▇) or other Laws and Regulations which generally affect rights of the creditors of the Borrower, and excluding provisions which are generally suspected to be illegal or invalid in the “Borrower Agreements”agreements which are similar to this (English Translation - For Reference Purpose Only) Agreement).
(b7) The execution This Agreement (i) has been duly and delivery validly executed (ii) has not been amended without acknowledgement of the Lenders and the Agent, and (iii) to the best knowledge of the Borrower Agreements on no cause to invalidate, terminate, repeal or cancel it has occurred, and to the knowledge of the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions there is no reasonable likelihood thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c8) The Shareholders validly hold 100% (on the Fully Diluted Basis) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part outstanding shares of the program of a school or department of divinity for any religious denominationBorrower.
(d9) No litigationAll Financial Documents prepared by the Borrower are prepared in accordance with accounting standards which are generally accepted as fair and appropriate in Japan or the International Financial Reporting Standards (IFRSs), proceedings or investigations and are pending oraudited by an audit firm and such audit has been completed in its unqualified opinion.
(10) After the Fiscal Year ending in March 2016, to the knowledge of the Borrower, threatened in writing against the Borrower seeking no material events which have or would reasonably be expected to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations Borrower's performance of its payment obligations under this Agreement have occurred.
(11) The Borrower has not established any security interest over its material assets excluding the Existing Securities and security interests automatically created by virtue of the Laws and Regulations or condition, financial or otherwise, otherwise permitted hereunder.(including Clause 18.3)
(12) The Financial Indebtedness of the Borrower on a consolidated basisunder this Agreement are ranked at least pari passu in all respects with all other unsecured and non-subordinated payment obligations (including guarantee obligations) of the Borrower under other agreements (excluding obligations prioritized by virtue of the Laws and Regulations).
(e13) No Statutory Insolvency Procedures or Private Rehabilitation Procedures have been initiated with respect to the Borrower. The Borrower has not become unable (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (iishiharai funo), the absence of certain notes and subject or admitted to year-end adjustments; and there its creditors its inability (shiharai teishi) to pay debts generally as such debts become due, nor has been no material adverse change in the condition, financial it become insolvent. Any promissory note (yakusoku tegata) or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
check (fkogitte) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation issued by the Borrower in Japan has not been dishonored (fuwatari) and the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were madeBorrower have not been suspended by a clearinghouse, not misleadingor ▇▇▇▇▇▇.▇▇▇ Co., Ltd., and no other equivalent procedures have been taken by other electric monetary claim recording institutions. There is no fact reasonable likelihood that the Borrower's execution and performance of this Agreement will cause the occurrence of any circumstances set out in this paragraph.
(14) No litigation procedures, arbitration procedures, administrative procedures or any other legal procedures which will or may have a material adverse effect on the Borrower Borrower's performance of its payment obligations under this Agreement has not disclosed been commenced, and to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payableknowledge there is no reasonable likelihood that such procedures will be (English Translation - For Reference Purpose Only) commenced.
(g15) Compliance by The Borrower has obtained and maintains duly and validly all material Permission Etc. (excluding minor violations, a failure to which has or would reasonably be expected to have a material adverse effect on the Borrower's performance of its payment obligations under this Agreement. The Borrower with the provisions is not in breach of the Borrower Agreements will Laws and Regulations (including but not involve, limited to the extent applicable, any prohibited transaction within the meaning construction law (Kenchikukijun ho) (Law No. 201 of the Employee Retirement Income Security Act of 1974, 1950 as amended (in this Agreement sometimes referred to as “ERISA”amended), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by ) which have a material adverse effect on the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 's performance of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in its payment obligations under this Agreement.
(i16) No Events of Default have occurred and, to the Borrower's knowledge, there is no reasonable likelihood for such events to occur.
(17) The Borrower does not fall under Anti-Social Forces or ASF Related Parties, and has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further not committed Anti-Social Conduct by itself or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreementsthrough a third party.
(j18) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.(Intentionally Deleted)
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties by the Borrower. The ---------------------------------------------- Borrower makes the following representations represents and warranties as the basis for its covenants in this Agreementwarrants that:
(a) The Borrower is a corporation duly incorporated organized, validly existing and in good standing under the laws of the State state of Illinois, is in good standing and duly authorized to conduct its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”)incorporation.
(b) The Borrower has the power and authority and has been duly authorized to enter into the Bond Documents to which the Borrower is a party, and perform all of the Borrower's obligations thereunder, and no approval or other action by any governmental authority or agency or other person is required in connection therewith except such as have been obtained as of the date of execution and delivery hereof.
(c) The willingness of the Issuer to issue the Series 1999 Bonds for purposes of financing costs of acquiring, constructing, renovating, equipping and installing the Project has induced the Borrower to locate the Project within the boundaries of the Issuer.
(d) The Project will create or preserve jobs and employment opportunities within the boundaries of the State and the Issuer, thereby improving the economic prosperity and general welfare of the State and the Issuer.
(e) The Borrower is not subject to any contractual or other limitation or provision of any nature whatsoever which in any way limits, restricts or prevents the Borrower from entering into the Bond Documents to which the Borrower is a party, or performing any of the Borrower's obligations thereunder; and the execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of Bond Documents to which the Borrower Agreementsis a party, the Borrower’s consummation of the transactions contemplated on its part thereby, nor and the Borrower’s fulfillment of or compliance with the terms and conditions thereof will not conflict with or result in a breach of the terms, conditions or provisions of the Borrower's Articles of Incorporation, Bylaws or other organizational document, resolutions or actions of its shareholders or Board of Directors, or any committee thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach nor of any material restriction, agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent)is bound, or constitutes a material default (of any law or would regulation, or of any writ, order or decree of any court or governmental agency, or constitute a material default with due notice or the passage of time or both) under any such material agreement of the foregoing, or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined result in the Environmental Act. No portion creation or imposition of any lien, charge or encumbrance upon any of the Project includes any property used properties or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution and delivery assets of the Borrower Agreements or which would in pursuant to the terms of any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In additionforegoing, except as described in contemplated by the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge terms of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basisBond Documents.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Sources: Loan Agreement (Peco Ii Inc)
Representations and Warranties by the Borrower. The Borrower makes the following representations represents and warranties warrants as the basis for its covenants in this Agreementfollows:
(a) The Borrower is a corporation corporation, duly incorporated organized, validly existing and in good standing under the laws of the State of IllinoisDelaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing and duly authorized to conduct its business in standing, wherever such qualification is required, including the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”)State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution and nor delivery of the Borrower Agreements on Documents, nor the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part hereby or thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any material of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent)bound, or constitutes a material default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Project.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would constitute have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Project does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a material default technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with due notice another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both) under any , would constitute an Event of Default hereunder, specifying the nature and period of existence of such material agreement event and the actions being taken or instrumentproposed to be taken with respect thereto.
(cl) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreementlocated wholly within Darlington County, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denominationSouth Carolina.
(do) No litigation, proceedings or investigations are There is not now pending or, to the knowledge of the Borrower, threatened in writing threatened, any suit, action or proceeding against or affecting the Borrower seeking by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to restrainthe Borrower, enjoin or in any way limit the approval or execution would materially and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence validity of any of the transactions contemplated by this Loan Agreement or powers the Indenture, or impair the ability of the Borrower to enter into and carry out the transactions described in or contemplated by perform its obligations under this Loan Agreement or the executionIndenture, deliveryor as contemplated hereby or thereby, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending ornor, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basisis there any basis therefor.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Sources: Loan Agreement (Bremen Bearings Inc)
Representations and Warranties by the Borrower. The Borrower hereby makes the following representations and warranties and acknowledges and agrees that each and every one of the following representations and warranties shall survive closing and shall continue for as long as the basis for its covenants in this AgreementLoan remains outstanding:
(a) The Borrower is has been duly organized and validly exists as a corporation duly incorporated under the laws of the State of IllinoisDelaware, is in good standing has power to enter into this Loan Agreement and duly authorized the Note evidencing the debt obligation of the Borrower to conduct its business in the State of Illinois, is duly authorized Authority hereunder and has full power under authorized the taking of all applicable laws action necessary to carry out and its restated articles of incorporation and by-laws give effect to create, issue, enter into, execute and deliver, as the case may be, transactions contemplated by this Loan Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The There is no action or proceeding pending or threatened against the Borrower before any court or administrative agency that might adversely affect the ability of the Borrower to perform its obligations under this Loan Agreement and all authorizations, consents and approvals of governmental bodies or agencies, required in connection with the performance of the Borrower's obligations hereunder have been obtained and will be obtained whenever required hereunder or by law.
(c) Neither the execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreementsthis Loan Agreement, the Borrower’s consummation of the transactions contemplated on its part therebyhereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereofof this Loan Agreement is prevented, violates the restated articles of incorporation or limited by-laws of the Borrower , or conflicts with or results in a material breach of, the terms, conditions, or provisions of any material corporate restrictions or any evidence of indebtedness, agreement or instrument of whatever nature to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent)bound, or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denominationforegoing.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution All tax returns and delivery reports of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of required by law to be filed have been duly filed and all taxes, assessments, fees and other governmental charges upon the Borrower or upon any of its respective properties, assets, income or franchises which are due and payable pursuant to enter into such returns and carry out the transactions described in reports, or contemplated by or the execution, delivery, validity or performance pursuant to any assessment received by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings have been paid other than those which may be presently payable without penalty or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basisinterest.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there There has been no material adverse change in the aggregate assets or aggregate liabilities or in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed financial statements delivered to the Authority by the Borrower in the Official Statementconnection with this Loan Agreement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) aboveAll statements, this Agreement, the Tax Certificate representations and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation warranties made by the Borrower in its application to the transactions contemplated Department, and any materials furnished in support of the request for financial assistance and this Loan Agreement are true. It is specifically understood by the Borrower that all such statements, representations and in warranties shall be deemed to have been relied upon by the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary Department and the Authority as an inducement to make the statements contained therein Loan and that if any such statements, representations or in this Agreementwarranties were materially false at the time they were made or are breached during the term hereof, the Authority may, in light its sole discretion, consider any such misrepresentation or breach an event of the circumstances under which they were madedefault including without limitation, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability 's representation that it would not have been able to make payments under this Agreement when and as proceed with the same become due and payableProject without financial assistance from the Fund.
(g) Compliance Borrower represents to the Authority that it has at all times pertinent to this Loan Agreement been represented by advisors of its own selection, including but not limited to attorneys-at-law and/or certified public accountants; that it has not relied upon any statement, representation, warranty, agreement or information provided by the Borrower Department or the Authority, its employees, agents or attorneys; that it acknowledges that it is informed by its advisors of its respective rights, duties, and obligations with the provisions of the Borrower Agreements will not involve, respect to the extent applicableLoan under all applicable laws, any prohibited transaction within that it has no set-offs, defenses or counterclaims against the meaning of Department or the Employee Retirement Income Security Act of 1974Authority with respect to the Loan, as amended (and that it is indebted to the Authority for the amounts stated in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicableLoan Agreement.
(h) The representations Borrower further acknowledges and certifications contained agrees that the Department and the Authority has made no statements, representations, warranties, agreements or provided information to it in order to induce the execution of this Loan Agreement. Borrower further acknowledges and agrees that all agreements of the parties are set forth in this Loan Agreement or in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated financing documents executed by reference in this AgreementBorrower prior to or on even date hereof.
(i) The If during any time the Loan remains outstanding, the Borrower has obtained the approval and authorization becomes aware of any facts, occurrences, information, statements, or events that render any of the Illinois Commerce Commission to borrow moneyforegoing representations or warranties herein made untrue or materially misleading or incomplete, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to shall immediately notify the Authority and bond counsel for the Bonds is true and correct in all material respectswriting of such facts, occurrences, information, statements or events.
Appears in 1 contract
Sources: Loan Agreement (Igi Inc)
Representations and Warranties by the Borrower. The Borrower makes the following representations represents and warranties warrants as the basis for its covenants in this Agreementfollows:
(a) The Borrower is a corporation corporation, duly incorporated organized, validly existing and in good standing under the laws of the State of IllinoisDelaware, has the power and authority to own its properties and carry on its business as now being conducted, and is duly qualified to do such business, and is in good standing and duly authorized to conduct its business in standing, wherever such qualification is required, including the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”)State.
(b) The Borrower has the power and authority to execute and deliver the Borrower Documents, and to carry out the transactions contemplated hereby and thereby, and has duly authorized the execution, delivery and performance of each of the foregoing.
(c) Neither the execution and nor delivery of the Borrower Agreements on Documents, nor the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part hereby or thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions hereof or thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of or will constitute a default under any material of the terms, conditions or provisions or any legal restriction of any agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent)bound, or constitutes a material default under any of the foregoing or violates any judgment, order, writ, injunction, decree, law, rule or regulation to which it is subject.
(d) The Borrower is knowledgeable in the operation of manufacturing facilities of the magnitude and nature of the Plant.
(e) The Borrower is not presently under any cease or desist order or other orders of a similar nature, temporary or permanent, of any federal or state authority which would constitute have the effect of preventing or hindering performance of its duties hereunder, nor are there any proceedings presently in progress or to its knowledge contemplated which would, if successful, lead to the issuance of any such order.
(f) To the best of its knowledge, the Borrower has made, and will during the term of this Agreement make, all filings which it is obligated to make with, and has obtained, and will during the term of this Agreement obtain, all approvals and consents which it is obligated to obtain from all federal, state and local regulatory agencies having jurisdiction to the extent, if any, required by applicable laws and regulations to be made or to be obtained in connection with the Project, the execution and delivery by the Borrower of the Borrower Documents, the transaction contemplated thereunder, and the performance by the Borrower of its obligations thereunder.
(g) To the best of the Borrower's knowledge, except to the extent disclosed to the Credit Enhancer, the operation and maintenance of the Plant does not conflict with any zoning, building, safety, health or environmental quality or other law, ordinance, order, rule or regulation applicable thereto.
(h) The Borrower will keep and perform faithfully all of its duties, obligations, covenants and undertakings contained herein and in the Borrower Documents.
(i) The Borrower will execute and deliver such additional instruments and perform such additional acts as may be necessary, in the opinion of the Issuer, to carry out the intent hereof and of the Borrower Documents or to perfect or give further assurances of any of the rights granted or provided for herein or in the Borrower Documents.
(j) The Borrower agrees that during the Loan Term it will maintain its existence, will not dissolve (other than a material default technical dissolution under State law so long as the Borrower is immediately reconstituted) or otherwise dispose of all or substantially all of its assets; provided that the Borrower may, without violating the agreement contained in this paragraph, merge or consolidate with due notice another legal entity or sell or otherwise transfer to another legal entity all or substantially all of its assets as an entirety and thereafter dissolve, provided (i) that such merger, consolidation or transfer will not affect the excludability of the interest on the Bonds from gross income for federal income tax purposes; (ii) that if the successor or transferee legal entity is not the Borrower, then such legal entity shall be a legal entity, organized and existing under the laws of one of the States of the United States of America and shall be qualified to do business in the State; (iii) such successor or transferee entity shall assume all of the obligations of the Borrower under the Borrower Documents in which event the Borrower shall be released from its obligations under the Borrower Documents; and (iv) the Credit Enhancer consents thereto in writing.
(k) The Borrower will advise the Issuer, the Credit Enhancer and the Trustee promptly in writing of the occurrence of any Default hereunder or any event which, with the passage of time or service of notice, or both) under any , would constitute an Event of Default hereunder, specifying the nature and period of existence of such material agreement event and the actions being taken or instrumentproposed to be taken with respect thereto.
(cl) Any certificate signed by an Authorized Borrower Representative and delivered pursuant to this Loan Agreement or the Indenture shall be deemed a representation and warranty of the Borrower as to the statement made therein.
(m) Concurrently with the execution of this Loan Agreement, the Borrower will cause to be delivered to the Trustee, on behalf of the Issuer, the Credit Facility and the Credit Facility shall be in full force and effect and shall secure the payment of the principal and purchase price of, and interest on, the Bonds.
(n) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of working capital constituting the Project includes any property used or to will be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily solely in connection with any part the Borrower's operation of the program Plant or to pay costs of a school or department issuance of divinity for any religious denominationthe Bonds.
(do) No litigation, proceedings or investigations are There is not now pending or, to the knowledge of the Borrower, threatened in writing threatened, any suit, action or proceeding against or affecting the Borrower seeking by or before any court, arbitrator, administrator, administrative agency or other governmental authority which, if decided adversely to restrainthe Borrower, enjoin or in any way limit the approval or execution would materially and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence validity of any of the transactions contemplated by this Loan Agreement or powers the Indenture, or impair the ability of the Borrower to enter into and carry out the transactions described in or contemplated by perform its obligations under this Loan Agreement or the executionIndenture, deliveryor as contemplated hereby or thereby, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending ornor, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basisis there any basis therefor.
(ep) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity Project is of the Borrower for each of type authorized and permitted by the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008Act, and the consolidated balance sheet as of March 31, 2008, all included in Project is substantially the Official Statement, fairly present same in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated to that described in the notes thereto andnotice of public hearing published in The Darlington News and Post on June 1, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement1994.
(fq) The information used in the preparation of the financial statements referred to in paragraph Plant is located wholly within Darlington County, South Carolina.
(er) above, this Agreement, the Tax Certificate and Agreement and The Borrower will not take any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact action or omit to state a material fact necessary take any action or permit any action which is within its control to make be taken or omitted which would impair the statements contained therein or in this Agreement, in light excludability from gross income for federal income taxation purposes of interest on the circumstances under which they were made, not misleadingSeries 1994A Bonds. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition [End of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.Article II]
Appears in 1 contract
Sources: Loan Agreement (Bremen Bearings Inc)
Representations and Warranties by the Borrower. The Borrower makes the following representations and warranties as the basis for its covenants in this Agreementherein:
(a) The Borrower is a corporation duly incorporated under the laws of the State of Illinois, is in good standing and duly authorized to conduct its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreementhereto, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them thereon of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those said dates, and the results of the operations of the Borrower for each of those such periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, 2007 from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement herein and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreementherein, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement herein sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (herein sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreementherein.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties by the Borrower. The Borrower makes the following representations and warranties as the basis for its covenants in this Agreement:
(a) The Borrower is a corporation duly incorporated under the laws of the State of Illinois, is in good standing and duly authorized to conduct its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- self-insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
Appears in 1 contract
Representations and Warranties by the Borrower. The Borrower makes the following representations and warranties as the basis for its covenants in this Agreementherein:
(a) The Borrower is a corporation duly incorporated under the laws of the State of Illinois, is in good standing and duly authorized to conduct its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws to create, issue, enter into, execute and deliver, as the case may be, this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b) The execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreementhereto, and (ii) the pollution control facilities constitute constitutes “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
(d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower seeking to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- self-insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower on a consolidated basis.
(e) The (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them thereon of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those said dates, and the results of the operations of the Borrower for each of those such periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (ii), the absence of certain notes and subject to year-end adjustments; and there has been no material adverse change in the condition, financial or otherwise, of the Borrower on a consolidated basis since December 31, 2007, 2007 from that set forth in the information so utilized except as disclosed in the Official Statement.
(f) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation by the Borrower in the transactions contemplated in this Agreement herein and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreementherein, in light of the circumstances under which they were made, not misleading. There is no fact which the Borrower has not disclosed to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(g) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (in this Agreement sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in this Agreement.
(i) The Borrower has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreements.
(j) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.
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Representations and Warranties by the Borrower. The Borrower makes represents and warrants to the Lender and the Agent that each of the following representations matters is true and warranties correct as of the basis for date of this Agreement and the Drawdown Date. The Borrower shall immediately provide notice in writing to the Agent in accordance with item (2) of Clause 18.2 in the event any of the facts set out in the following items are found to have been untrue or incorrect. This Clause 17 shall remain in full effect until the Borrower completes the performance of all its covenants in obligations and liabilities under this Agreement:. The Borrower shall indemnify the Lenders and the Agent for all losses and expenses directly incurred by them which are directly caused by any of the following items being found to be untrue except in cases of the gross negligence or willful misconduct of the Agent or any Lender.
(a1) The Borrower is a corporation stock company duly and validly incorporated and validly existing under the laws of Japan.
(2) The Borrower holds both the State capacity to hold rights and capacity to act required for the execution and performance of Illinoisthis Agreement, is in good standing and duly authorized all procedures required for the same by Laws and Regulations applicable to conduct the Borrower, its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its restated articles of incorporation and by-laws other internal regulations have been completed.
(3) The execution and performance of this Agreement by the Borrower and transactions associated herewith do not result in (i) any violation of the Laws and Regulations binding the Borrower (except minor violation thereof); (ii) any breach of the Borrower’s articles of incorporation or its other internal regulations (except minor breach thereof), and (iii) any breach of agreements entered into by the Borrower with third parties (excluding the Existing Senior Loan Agreement and the agreements to create, issue, enter into, execute create the Existing Securities) which bind the Borrower or its assets to the extent a breach thereof would have a material adverse effect on the Borrower's performance of its payment obligations under this Agreement.
(4) The person who signed or attached his/her name and deliver, seal to this Agreement on behalf of the Borrower is fully authorized to sign or attach his/her name and seal to this Agreement as the case may berepresentative of the Borrower by all procedures required by the Laws and Regulations applicable to the Borrower, the articles of incorporation and other internal regulations of the Borrower.
(5) (Intentionally Deleted)
(6) This Agreement constitutes legal, valid and binding obligations of the Borrower, and is enforceable against the Borrower in accordance with the terms thereof (subject to restrictions under bankruptcy law (▇▇▇▇▇ ▇▇) or other Laws and Regulations which generally affect rights of the creditors of the Borrower, and excluding provisions which are generally suspected to be illegal or invalid in the agreements which are similar to this Agreement, the Tax Certificate and Agreement, the Purchase Contract, the Initial Reimbursement Agreement, the Remarketing Agreement, the Supplemental Borrower Indenture and the Borrower Bonds (collectively, the “Borrower Agreements”).
(b7) The execution This Agreement (i) has been duly and delivery validly executed (ii) has not been amended without acknowledgement of the Lenders and the Agent, and (iii) to the best knowledge of the Borrower Agreements on no cause to invalidate, terminate, repeal or cancel it has occurred, and to the knowledge of the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions there is no reasonable likelihood thereof, violates the restated articles of incorporation or by-laws of the Borrower or conflicts with or results in a material breach of any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any such material agreement or instrument.
(c8) The Shareholders validly hold 100% (on the Fully Diluted Basis) The Project (i) is comprised of certain pollution control facilities or solid waste control facilities at the electric generating plants listed in Exhibit A to this Agreement, and (ii) the pollution control facilities constitute “environmental facilities” as defined in the Environmental Act. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part outstanding shares of the program of a school or department of divinity for any religious denominationBorrower.
(d9) No litigationAll Financial Documents prepared by the Borrower are prepared in accordance with accounting standards which are generally accepted as fair and appropriate in Japan or the International Financial Reporting Standards (IFRSs), proceedings or investigations and are pending oraudited by an audit firm and such audit has been completed in its unqualified opinion.
(10) After the Fiscal Year ending in March 2016, to the knowledge of the Borrower, threatened in writing against the Borrower seeking no material events which have or would reasonably be expected to restrain, enjoin or in any way limit the approval or execution and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, except as described in the Official Statement, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self- insurance programs or (ii) will not have a material adverse effect on the operations Borrower's performance of its payment obligations under this Agreement have occurred.
(11) The Borrower has not established any security interest over its material assets excluding the Existing Securities and security interests automatically created by virtue of the Laws and Regulations or condition, financial or otherwise, otherwise permitted hereunder.(including Clause 18.3)
(12) The Financial Indebtedness of the Borrower on a consolidated basisunder this Agreement are ranked at least pari passu in all respects with all other unsecured and non-subordinated payment obligations (including guarantee obligations) of the Borrower under other agreements (excluding obligations prioritized by virtue of the Laws and Regulations).
(e13) No Statutory Insolvency Procedures or Private Rehabilitation Procedures have been initiated with respect to the Borrower. The Borrower has not become unable (i) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for each of the fiscal years ended December 31, 2005, 2006 and 2007 and the consolidated balance sheet as of December 31, 2006 and 2007, together with the reports on them of PricewaterhouseCoopers LLP, independent registered public accounting firm, and (ii) consolidated statements of income, cash flows and changes in shareholders’ equity of the Borrower for the three months ended March 31, 2007 and 2008, and the consolidated balance sheet as of March 31, 2008, all included in the Official Statement, fairly present in all material respects the financial condition of the Borrower as of those dates, and the results of the operations of the Borrower for each of those periods, respectively, all in accordance with generally accepted accounting principles consistently applied except as stated in the notes thereto and, in the case of the statements referred to in clause (iishiharai funo), the absence of certain notes and subject or admitted to year-end adjustments; and there its creditors its inability (shiharai teishi) to pay debts generally as such debts become due, nor has been no material adverse change in the condition, financial it become insolvent. Any promissory note (yakusoku tegata) or otherwise, of the Borrower on a consolidated basis since December 31, 2007, from that set forth in the information so utilized except as disclosed in the Official Statement.
check (fkogitte) The information used in the preparation of the financial statements referred to in paragraph (e) above, this Agreement, the Tax Certificate and Agreement and any other written statement furnished by the Borrower to the Authority (including the descriptions and information contained in the Official Statement relating to (i) the Borrower and the Project, (ii) the operations and financial and other affairs of the Borrower, (iii) the application by the Borrower of the proceeds to be received by it from the loan of the proceeds of sale of the Bonds, and (iv) the participation issued by the Borrower in Japan has not been dishonored (fuwatari) and the transactions contemplated in this Agreement and in the Official Statement) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or in this Agreement, in light of the circumstances under which they were madeBorrower have not been suspended by a clearinghouse, not misleadingor ▇▇▇▇▇▇.▇▇▇ Co., Ltd., and no other equivalent procedures have been taken by other electric monetary claim recording institutions. There is no fact reasonable likelihood that the Borrower's execution and performance of this Agreement will cause the occurrence of any circumstances set out in this paragraph.
(14) No litigation procedures, arbitration procedures, administrative procedures or any other legal procedures which will or may have a material adverse effect on the Borrower Borrower's performance of its payment obligations under this Agreement has not disclosed been commenced, and to the Authority in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower on a consolidated basis, or the Borrower’s ability to make payments under this Agreement when and as the same become due and payableknowledge there is no reasonable likelihood that such procedures will be commenced.
(g15) Compliance by The Borrower has obtained and maintains duly and validly all material Permission Etc. (excluding minor violations, a failure to which has or would reasonably be expected to have a material adverse effect on the Borrower's performance of its payment obligations under this Agreement. The Borrower with the provisions is not in breach of the Borrower Agreements will Laws and Regulations (including but not involve, limited to the extent applicable, any prohibited transaction within the meaning construction law (Kenchikukijun ho) (Law No. 201 of the Employee Retirement Income Security Act of 1974, 1950 as amended (in this Agreement sometimes referred to as “ERISA”amended), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (sometimes referred to in this Agreement as “Plans”), maintained by ) which have a material adverse effect on the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 's performance of ERISA, to the extent applicable.
(h) The representations and certifications contained in the Tax Certificate and Agreement and the Project Agreement and Certificate are true and correct, and are incorporated by reference in its payment obligations under this Agreement.
(i16) No Events of Default have occurred and, to the Borrower's knowledge, there is no reasonable likelihood for such events to occur.
(17) The Borrower does not fall under Anti-Social Forces or ASF Related Parties, and has obtained the approval and authorization of the Illinois Commerce Commission to borrow money, enter into loan agreements and issue and deliver mortgage bonds as collateral for loan agreements. That approval includes approval for this Agreement and the issuance of the Borrower Bonds to the Trustee as assignee of the Authority. No further not committed Anti-Social Conduct by itself or additional approval, authorization or consent of any governmental or public agency or authority is required in connection with the execution and delivery by the Borrower of the Borrower Agreementsthrough a third party.
(j18) The information contained in the written documents relating to the Project and the use of the proceeds of the Original Bonds, the Prior Bonds and the Bonds provided by the Borrower to the Authority and bond counsel for the Bonds is true and correct in all material respects.(Intentionally Deleted)
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