Representations and Warranties of the Credit Parties. Each Credit Party represents and warrants as of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries): (a) The Credit Parties (i) are Persons duly organized, validly existing and (to the extent such concept is applicable in such jurisdiction) in good standing under the laws of the jurisdictions of their respective organization, (ii) are duly qualified and in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conducted. (b) The execution, delivery and performance by each Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Credit Party’s charter or by-laws (or similar organizational documents), (ii) any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any of its properties or assets. (c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee. (d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice. (e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change. (f) All written information and reports furnished by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made. (g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have a Material Adverse Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby. (h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock. (i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).
Appears in 1 contract
Sources: Credit Agreement (International Flavors & Fragrances Inc)
Representations and Warranties of the Credit Parties. Each of the Credit Party Parties represents and warrants as of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):follows:
(a) The execution, delivery and performance by such Credit Parties Party of this Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of such Credit Party’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) are Persons duly organized, validly existing and (any Contractual Obligation to the extent which such concept Credit Party is applicable in such jurisdiction) in good standing under the laws of the jurisdictions of their respective organization, party or (ii) are duly qualified and in good standing (any order, injunction, writ or decree of any Governmental Authority or any arbitral award to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification Credit Party or its Property is required by law, except where the failure to so qualify or be licensed, either individually or subject; (c) result in the aggregatecreation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to such Credit Party and this Amendment, could except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conducted.
(b) The execution, delivery This Amendment has been duly executed and performance delivered by each Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, are within such Credit Party’s corporate powers. This Amendment constitutes legal, have been duly authorized by all necessary corporate action, valid and do not contravene (i) binding obligations of such Credit Party’s charter or by-laws (or similar organizational documents), (ii) any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting enforceable against such Credit Party in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (other than the Yen Notesregardless of whether enforcement is sought in equity or at law) or any and implied covenants of its properties or assetsgood faith and fair dealing.
(c) No authorization or approval approval, consent, exemption, authorization, or other action by, and no or notice to to, or filing with, any Governmental Authority or any other Person is necessary or required for in connection with the due execution, delivery and or performance by the by, or enforcement against, such Credit Parties Party of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except Amendment (iother than (a) as have already been obtained or made and are in full force and effect, (iib) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining filings to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party perfect security interests granted pursuant to this Agreement Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the Note failure to procure which would not reasonably be expected to have a non-resident Eligible AssigneeMaterial Adverse Effect).
(d) This Agreement has beenAfter giving effect to this Amendment, the representations and the Note when delivered hereunder will have been, duly executed and delivered by warranties contained in each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, Credit Documents and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party in the case of this Agreement and of the Borrower in the case of the Note, enforceable against applicable to such Credit Party are true and correct in accordance with their respective terms, all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the enforceability thereof may representations and warranties contained in Section 6.05 of the Credit Agreement shall be limited by deemed to refer to the effect most recent financial statements furnished pursuant to Section 7.01(a) and (b) of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating the Credit Agreement and to or affecting creditors’ rights generally or by general principles the date of equity or similar principles under Japanese practicesuch financial statements.
(e) The Consolidated balance sheet No Default or Event of Default shall exist immediately prior to and after giving effect to (i) the Guarantor and its Subsidiaries this Amendment and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the any Credit Parties to the Lender Extension made in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were madeherewith.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have a Material Adverse Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each Credit Party of the Borrower and the Guarantor represents and warrants as of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):follows:
(a) The Credit Parties (i) are Persons Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and (and, in the case of the Borrower, authorized to transact business under the extent such concept is applicable laws of the State of its incorporation, and, in such jurisdiction) the case of the Guarantor, in good standing under the laws of the jurisdictions State of their respective organization, (ii) are duly qualified and in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conductedits incorporation.
(b) The execution, delivery and performance by each Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, and (iii) do not contravene (iA) such Credit Party’s charter or by-laws laws, as the case may be, or (or similar organizational documents), (iiB) any law, statute, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any ordermaterial Contractual Obligation or legal restriction, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any Material Subsidiary, as the case may be, and (iv) do not require the creation of its properties any Lien on the property of such Credit Party or assetsany Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by the any Credit Parties Party of this Agreement or the Note, or for the consummation of any other Credit Document to which any of the transactions contemplated hereby or therebythem is a party, except for such as (i) as have been obtained or made and that are in full force and effect, effect or (ii) as may be are not presently required because of the legal under applicable law and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assigneehave not yet been applied for.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Each Credit Document to which any Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the is a party is a legal, valid and binding obligation of each such Credit Party in the case of this Agreement and of the Borrower in the case of the NoteParty, enforceable against such Credit Party in accordance with their respective its terms, except subject to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws now or hereafter in effect relating to or affecting creditors’ rights generally or by and subject to general principles of equity, regardless of whether considered in a proceeding in equity or similar principles under Japanese practiceat law.
(e) The Consolidated consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31September 30, 20072004, and the related Consolidated statements of income and cash flows retained earnings of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year nine months then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been made available or furnished to each Lender, fairly present in all material respects (subject to year-end adjustments) the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP generally accepted accounting principles consistently applied. .
(f) Since December 31, 20072003, there has been no Material Adverse Change.
material adverse change in such condition or operations, or in the business, assets, operations, condition (ffinancial or otherwise) All written information and reports furnished by or on behalf prospects of any of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were madeColumbia.
(g) There is no pending or, to the knowledge of the Credit Parties, or threatened action, suit, investigation, litigation proceeding or proceeding, including, without limitation, any Environmental Action, investigation affecting any member of the Group such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (ataking into account the exhaustion of appeals) could be reasonably likely to would have a Material Adverse Effect Effect, or that (bi) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the consummation ownership or operation, by any Credit Party or any of the transactions contemplated herebytheir respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Borrower is Guarantor and its Subsidiaries, taken as a whole, do not engaged hold or carry Margin Stock having an aggregate value in the business excess of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U 10% of the Board value of Governors of the Federal Reserve System)their consolidated assets, and no part of the proceeds of the any Loan or Letter of Credit hereunder will be used to purchase buy or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stockMargin Stock.
(i) No member ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2003 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Group Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company” (each as defined in ”, within the meaning of the Investment Borrower Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each Credit Party represents and warrants to each of the other parties hereto that as of the date hereof and as of Closing Date (except to the Effective Date as follows (in each case as extent that any such representation or warranty relates to itself and its Subsidiariesan earlier date):
(a) The Such Credit Parties Party and each subsidiary thereof (i) are Persons is duly organized, validly existing and (to the extent such concept is applicable in such jurisdiction) in good standing under the laws of the jurisdictions jurisdiction of their respective its incorporation or organization, (ii) are has the corporate or other necessary power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, and (iii) is duly qualified as a foreign entity and is in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, other than in such jurisdictions where the failure to be so qualified and in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify or would not be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conducted.;
(b) The execution, execution and delivery and performance by each Credit Party of this Agreement and the Note, other applicable Operative Agreements as of such date and the consummation performance by each Credit Party of its respective obligations under this Agreement and the transactions contemplated hereby or thereby, other applicable Operative Agreements are within such the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party’s corporate powers, have been duly authorized by all necessary corporate corporate, partnership or limited liability company (as the case may be) action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approval, and do not contravene and will not (i) such violate any Legal Requirement which is binding on any Credit Party’s charter Party or by-laws (or similar organizational documents)any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any lawprovision of the Articles of Incorporation, statute, rule By-Laws or regulation or other organizational documents of any order, writ, judgment, injunction, decree, determination or award applicable to the Guarantor Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of their properties or assets its Subsidiaries or (iii) result in, or require, the creation or imposition of any material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party Lien (other than pursuant to the Yen Notesterms of the Operative Agreements) on any asset of any Credit Party or any of its properties or assets.Subsidiaries;
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this This Agreement and the Note other applicable Operative Agreements, executed prior to a non-resident Eligible Assignee.
(d) This Agreement has beenand as of such date by any Credit Party, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, constitute the legal, valid and binding obligation of each such Credit Party in the case of this Agreement and of the Borrower in the case of the NoteParty, as applicable, enforceable against such Credit Party Party, as applicable, in accordance with their respective terms, except . Each Credit Party has executed the various Operative Agreements required to the extent that the enforceability thereof may be limited executed by the effect such Credit Party as of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice.
(e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have a Material Adverse Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).;
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each Effective as of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Credit Party represents and warrants as to each of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):other parties hereto that:
(a) The the representations and warranties set forth in Section 28.1 of the Lease are true and correct (unless such relate solely to an earlier point in time), and the Lessee has delivered to the Agent the financial statements and other reports referred to in Article XXVIII of the Lease;
(b) the execution and delivery by each Credit Parties Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvals, and do not and will not (i) are Persons duly organized, validly existing and (to the extent such concept violate any Legal Requirement which is applicable in such jurisdiction) in good standing under the laws binding on any Credit Party or any of the jurisdictions of their respective organizationits Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the articles of incorporation, by-laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there are duly qualified no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in good standing accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the that failure to so qualify or be licensedcomply therewith, either individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and (iii) have Liens on, all corporate power of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and authority to own or lease and operate their properties and to carry on the Holders, as their respective businesses interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as now conducted title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as proposed their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be conductedperfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(bs) The executionthe Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, delivery planning, zoning and performance by each Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Credit Party’s charter or by-laws (or similar organizational documentsfire codes), (ii) any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any of its properties or assets.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof may failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice.
(e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely expected to have a Material Adverse Effect Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (bii) purports do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to affect the legality, validity or enforceability of on such date) shall have executed this Agreement or the consummation of the transactions contemplated herebyin its capacity as a Guarantor.
(hv) The Borrower is [not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.used]
(iw) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).[not used]
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each Credit Party severally, as applicable to itself and not the other Credit Party, represents and warrants as of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):Bank that:
(a) The Credit Parties Applicant (i) are Persons is a corporation duly organized, validly existing and (to the extent such concept is applicable in such jurisdiction) in good standing under the laws of the jurisdictions State of their respective organizationNevada, (ii) are duly is qualified to transact business and is in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction all states in which such qualification is required by law, except where the failure and good standing are necessary in order for it to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effectconduct its business and own its property, and (iii) have has all corporate requisite power and authority to conduct its business, to own or lease its property, to execute and operate their properties deliver this Agreement and to carry on their respective businesses as now conducted and as proposed to be conducted.perform its obligations hereunder;
(b) The Guarantor (i) is a sub-trust of Vicis Capital Series Master Trust, a unit trust duly organized, validly existing and in good standing under the laws of the Cayman Islands, (ii) is qualified to transact business and is in good standing in all jurisdictions in which qualification and good standing are necessary in order for it to conduct its business and own its property, and (iii) has all requisite power and authority to conduct its business, to own its property, to execute and deliver this Agreement and to perform its obligations hereunder;
(c) this Agreement has been duly and validly executed and delivered by each Credit Party and constitutes a legal, valid and binding obligation of each Credit Party, enforceable against each Credit Party in accordance with its terms, subject, as to enforceability of remedies, to bankruptcy, insolvency and other laws affecting creditors’ rights generally;
(d) Each Credit Party has taken all necessary action to authorize the execution, delivery and performance by each Credit Party of this Agreement and the NoteAgreement, and the consummation of the transactions contemplated hereby or therebysuch authorization, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, delivery and performance do not contravene and will not (i) such Credit Party’s charter or by-laws (or similar organizational documents), (ii) violate any law, statuterule, rule or regulation or any regulation, order, writ, judgment, injunction, decree, determination or award presently in effect and applicable to the Guarantor such Credit Party, (ii) require any consent or result in a material breach of or constitute a default under any agreement, lease or instrument to which such Credit Party is a party or by which such Credit Party or any of its Subsidiaries assets may be bound or any of their properties or assets affected, or (iii) result in or require the creation or imposition of any material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party Lien (other than in favor of Bank pursuant to this Agreement) upon or with respect to any of the Yen Notesproperties now owned or hereafter acquired by such Credit Party;
(e) no recording, order, authorization, consent, license, registration, approval, exemption, filing, notice or other similar action by or with any governmental body, governmental official or other regulatory authority (except such as have been obtained and copies or confirmations of which have been delivered by the applicable Credit Party to Bank) is or will be necessary (i) for the legality, validity, binding effect or enforceability of this Agreement, (ii) to permit the performance by each by each Credit Party of its obligations under this Agreement in accordance with the terms thereof, (iii) to enable Bank to enforce its rights and remedies under this Agreement, including any sale, transfer or other disposition by Bank of all or any part of the Collateral or (iv) to create and perfect the Lien on the Collateral which is granted under this Agreement or any related agreement or guarantee;
(f) Applicant is not in default with respect to any of its properties Indebtedness in a principal amount of $500,000 or assets.more;
(cg) No authorization Guarantor is not in default with respect to any of its Indebtedness in a principal amount of $2,500,000 or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance more;
(h) except as disclosed by the Credit Parties to Bank in writing prior to the date of this Agreement Agreement, there is no litigation or the Noteother proceeding pending or, to any Credit Party’s knowledge, threatened against or for the consummation of affecting any of the transactions contemplated hereby or therebyCredit Party which, except if determined adversely to such Credit Party, would have a material adverse effect on such Credit Party’s financial condition;
(i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining all information with respect to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party heretofore delivered to Bank by such Credit Party is true and correct as of the date hereof, and all other statements and data submitted in writing in connection with the Application are true and correct as of the date of the Application. No Credit Party has knowledge of any liabilities at said dates, contingent or otherwise, not otherwise notified to Bank on or prior to such dates, and no Credit Party has entered into any commitments or contracts, or incurred any other liabilities, at such dates that have not otherwise been notified to Bank, which could reasonably be expected to have a material adverse effect upon any Credit Party’s financial condition;
(j) all Collateral is owned by Guarantor free and clear of all Liens whatsoever (except for Liens in favor of Bank and, in the case of this Agreement and Collateral consisting of property held by or through Bank’s affiliates, Liens in favor of such affiliates);
(k) at no time shall the Borrower Collateral include any securities or other property in an amount such that (without taking any other relationships or assets of Bank into account) Bank, either upon exercising its rights or remedies hereunder or otherwise, would become a holder of 10% or more of any class of any equity security of any issuer or would become (or be presumed to be) an affiliate of any issuer of securities (as such term “affiliate” is defined for purposes of the Securities Act of 1933);
(l) no Credit Party is an affiliate (as such term “affiliate” is defined for purposes of the Securities Act of 1933) of the issuer of any security included in the case Collateral;
(m) no part of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by the effect proceeds of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice.
(e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or Advance will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have a Material Adverse Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending credit used for the purpose of purchasing buying or carrying “margin stock” Margin Stock (within the meaning of as defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System of the United States of America) or for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase including Regulation T, U or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.X;
(in) No member of the Group no Credit Party is an “investment company”” as defined in, or an “affiliated person” ofsubject to regulation under, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Company Act of 1940; and
(o) This Agreement, as amended)upon execution and delivery thereof by the parties thereto, will create in favor of Bank, a legal, valid and enforceable security interest in the Collateral and (i) upon execution and delivery of this Agreement, the Lien created hereunder in respect of the Account shall constitute a fully perfected first-priority Lien on, and security interest in, all right, title and interest of Guarantor in the Account, prior and superior in right to any other person, and (ii) when financing statements in appropriate form are filed with the Secretary of State of the District of Columbia, the Lien created hereunder will constitute a fully perfected first-priority Lien on, and security interest in, all right, title and interest of Guarantor in all other Collateral, prior and superior in right to any other person.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each In order to induce Administrative Agent and Lenders to enter into this Agreement, each Credit Party represents and warrants as of the date hereof to Administrative Agent and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):Lenders that:
(a) The Borrower has delivered to the Administrative Agent the financial statements and other reports referred to in Subsections 5.1(a)(i) and 5.1(a)(ii);
(b) Each of Credit Parties and its Subsidiaries (i) are Persons is duly organized, validly existing and (to the extent such concept is applicable in such jurisdiction) in good standing under the laws of its jurisdiction of organization; (ii) has all requisite power and authority to own, lease and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party, and to carry out the transactions contemplated hereby and thereby; and (iii) is qualified to do business and is in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect;
(c) The execution and delivery by each Credit Party of their this Agreement and the other applicable Credit Documents as of such date and the performance by each Credit Party of its respective organizationobligations under this Agreement and the other applicable Credit Documents are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approval, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the Articles of Incorporation, By-Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien on any asset of any Credit Party or any of its Subsidiaries;
(d) This Agreement and the other applicable Credit Documents executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Credit Documents required to be executed by such Credit Party as of such date;
(e) There are duly qualified and in good standing (no material actions, suits or proceedings pending or, to the extent such concept is applicable knowledge of any Credit Party, threatened against any Credit Party in such jurisdictionany court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Credit Document or any transaction contemplated thereby) as foreign corporations that (i) question the validity or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify enforceability of any Credit Document or be licensed, either individually or any transaction described in the aggregate, Credit Documents or (ii) shall have or could not reasonably be expected to have a Material Adverse Effect; provided, and (iii) for purposes of disclosure, the Credit Parties have all corporate power and authority to own or lease and operate their properties and to carry described the litigation set forth on their respective businesses as now conducted and as proposed to be conducted.Schedule 4.1(e);
(bf) The execution, delivery and performance No Governmental Action by each Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Credit Party’s charter or by-laws (or similar organizational documents), (ii) any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease Governmental Authority or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any of its properties or assets.
(c) No authorization or approval authorization, registration, consent, approval, waiver, notice or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice.
(e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have a Material Adverse Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).other
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each Credit Party of the Borrower and the Guarantor represents and warrants as of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):follows:
(a) The Credit Parties (i) are Persons Each of the Borrower and the Guarantor is a corporation duly organized, validly existing and (and, in the case of the Borrower, authorized to transact business under the extent such concept is applicable laws of the State of its incorporation, and, in such jurisdiction) the case of the Guarantor, in good standing under the laws of the jurisdictions State of their respective organization, (ii) are duly qualified and in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conductedits incorporation.
(b) The execution, delivery and performance by each Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, Credit Parties of the Credit Documents to which it is a party (i) are within such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporate action, and (iii) do not contravene (iA) such Credit Party’s charter or by-laws laws, as the case may be, or (or similar organizational documents), (iiB) any law, statute, rule or regulation (including, without limitation, the Public Utility Holding Company Act of 1935, as amended), or any ordermaterial Contractual Obligation or legal restriction, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any Material Subsidiary, as the case may be, and (iv) do not require the creation of its properties any Lien on the property of such Credit Party or assetsany Material Subsidiary under any Contractual Obligation binding on or affecting such Credit Party or any Material Subsidiary.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by the any Credit Parties Party of this Agreement or the Note, or for the consummation of any other Credit Document to which any of the transactions contemplated hereby or therebythem is a party, except for such as (i) as have been obtained or made and that are in full force and effect, effect or (ii) as may be are not presently required because of the legal under applicable law and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assigneehave not yet been applied for.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Each Credit Document to which any Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the is a party is a legal, valid and binding obligation of each such Credit Party in the case of this Agreement and of the Borrower in the case of the NoteParty, enforceable against such Credit Party in accordance with their respective its terms, except subject to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws now or hereafter in effect relating to or affecting creditors’ rights generally or by and subject to general principles of equity, regardless of whether considered in a proceeding in equity or similar principles under Japanese practiceat law.
(e) The Consolidated consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31September 30, 20072005, and the related Consolidated statements of income and cash flows retained earnings of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year nine months then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been made available or furnished to each Lender, fairly present in all material respects (subject to year-end adjustments) the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP generally accepted accounting principles consistently applied. .
(f) Since December 31, 20072004, there has been no Material Adverse Change.
material adverse change in such condition or operations, or in the business, assets, operations, condition (ffinancial or otherwise) All written information and reports furnished by or on behalf prospects of any of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were madeColumbia.
(g) There is no pending or, to the knowledge of the Credit Parties, or threatened action, suit, investigation, litigation proceeding or proceeding, including, without limitation, any Environmental Action, investigation affecting any member of the Group such Credit Party before any court, governmental agency or other Governmental Authority or arbitrator that (ataking into account the exhaustion of appeals) could be reasonably likely to would have a Material Adverse Effect Effect, or that (bi) purports to affect the legality, validity or enforceability of this Agreement or any promissory notes executed pursuant hereto, or (ii) seeks to prohibit the consummation ownership or operation, by any Credit Party or any of the transactions contemplated herebytheir respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Borrower is Guarantor and its Subsidiaries, taken as a whole, do not engaged hold or carry Margin Stock having an aggregate value in the business excess of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U 10% of the Board value of Governors of the Federal Reserve System)their consolidated assets, and no part of the proceeds of the any Loan hereunder will be used to purchase buy or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stockMargin Stock.
(i) No member ERISA Event has occurred, or is reasonably expected to occur, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect.
(j) Schedule B (Actuarial Information) to the 2004 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Group Internal Revenue Service and made available or furnished to each Lender, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no adverse change in such funding status which may reasonably be expected to have a Material Adverse Effect.
(k) Neither the Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Material Adverse Effect.
(l) Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in either such case, that could reasonably be expected to have a Material Adverse Effect.
(m) No Credit Party is an “investment company”, or an a company “affiliated personcontrolled” of, or “promoter” or “principal underwriter” for, by an “investment company” (each as defined in ”, within the meaning of the Investment Borrower Company Act of 1940, as amended.
(n) The Guarantor is a “public utility holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended, registered in compliance therewith.
(o) Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all laws (including, without limitation, the Public Utility Holding Company Act of 1935, as amended, and all Environmental Laws), except to the extent that any failure to be in compliance, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(q) No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the ability of such Subsidiary to make any payment, directly or indirectly, to such Credit Party, other than prohibitions and restrictions permitted to exist under Section 6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances made.
(s) The outstanding amount of the Loans when aggregated with all other outstanding short-term debt does not exceed $2,500,000,000 at any time prior to the delivery to the Administrative Agent of evidence reasonably satisfactory to it that the terms of the Order Authorizing Various External and Intrasystem Financing and Related Transactions; Reservations of Jurisdiction, dated December 30, 2003 and issued by the Securities and Exchange Commission (Release No. 35-27789; File No. 70-10169), are no longer in effect.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each Credit Party represents and warrants as of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):follows:
(a) The Each Credit Parties (i) are Persons duly organizedParty has the right, validly existing and (to the extent such concept is applicable in such jurisdiction) in good standing under the laws of the jurisdictions of their respective organization, (ii) are duly qualified and in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effectpower, and (iii) have authority and has taken all necessary corporate power or other action to authorize the execution, delivery and authority performance of this Amendment. This Amendment constitutes a legal, valid and binding obligation of such Credit Party, enforceable against each Credit Party that is party hereto in accordance with its terms, subject to own applicable bankruptcy, insolvency, reorganization, moratorium or lease other laws affecting creditors’ rights generally and operate their properties and subject to carry on their respective businesses as now conducted and as proposed to be conductedgeneral principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b) The execution, delivery and performance by each Credit Party of this Agreement Amendment and the Note, and the consummation of the transactions contemplated hereby or thereby, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene and will not, by the passage of time, the giving of notice or otherwise, (i) such require any Governmental Approval or violate any Applicable Law relating to any Credit Party’s charter or by-laws (or similar organizational documents), (ii) any law, statute, rule or regulation Party or any order, writ, judgment, injunction, decree, determination Subsidiary thereof where the failure to obtain such Governmental Approval or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any of its properties or assets.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may violation could reasonably be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice.
(e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely expected to have a Material Adverse Effect Effect, (ii) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws or other organizational documents of any Credit Party or any Subsidiary thereof, (iii) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such Person, which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iv) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Person other than Permitted Liens or (bv) purports to affect require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the legalityexecution, delivery, performance, validity or enforceability of this Agreement Amendment other than consents, authorizations, filings or other acts or consents for which the consummation of failure to obtain or make could not, individually or in the transactions contemplated herebyaggregate, reasonably be expected to have a Material Adverse Effect.
(hc) The Borrower is not engaged After giving effect to this Amendment, the representations and warranties contained in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds each of the Loan will be used Documents are true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to purchase Material Adverse Effect, which such representation and warranty are true and correct in all respects, on and as of the date hereof as though made on and as of such date (other than any such representations or carry any margin stock or warranties that, by their terms, refer to extend credit to others for the purpose a specific date, in which case as of purchasing or carrying margin stocksuch specific date).
(id) No member Default or Event of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended)Default shall exist after giving effect to this Amendment.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each Credit Party represents and warrants to each of the other parties hereto that as of the date hereof and as of Closing Date (except to the Effective Date as follows (in each case as extent that any such representation or warranty relates to itself and its Subsidiariesan earlier date):
(a) The Credit Parties (i) are Persons Each of the Lessee and its Subsidiaries is duly organized, validly existing and (to and, except for the extent such concept is applicable matter set forth in such jurisdiction) Schedule 6.2(a), in good standing under the laws of the jurisdictions jurisdiction of their respective its organization, (ii) are duly qualified has all requisite power and in good standing (authority to the extent such concept is applicable in such jurisdiction) carry on its business as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by lawnow conducted and, except where the failure to so qualify or be licenseddo so, either individually or in the aggregate, could not reasonably be expected to have result in a Material Adverse Effect, is qualified to do business in, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conductedis in good standing in, every jurisdiction where such qualification is required.
(b) The execution, delivery and performance by each Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, Transactions are within such Credit Partythe Lessee’s or Guarantor’s, as the case may be, corporate powers, powers and have been duly authorized by all necessary corporate and, if required, stockholder action. Each of the Operative Agreements (to which the Lessee or any Guarantor is a party) has been duly executed and delivered by the Lessee or the Guarantors, as applicable, and do not contravene (i) such Credit Party’s charter constitutes a legal, valid and binding obligation of the Lessee or by-laws (or similar organizational documents)the Guarantors, (ii) any lawas applicable, statuteenforceable in accordance with its terms, rule or regulation or any ordersubject to applicable bankruptcy, writinsolvency, judgmentreorganization, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease moratorium or other instrument binding on laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or affecting such Credit Party (other than the Yen Notes) or any of its properties or assetsat law.
(c) No authorization The Transactions (i) do not require any consent or approval of, registration or filing with, or any other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or therebyAuthority, except (i) such as have been obtained or made and are in full force and effect, (ii) as may be required because will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the legal and regulatory status Lessee or any of the Lender its Subsidiaries or because any order of any other facts specifically pertaining to the Lender and Governmental Authority, (iii) filing will not violate or result in a default under any indenture, agreement or other instrument binding upon the Lessee or any of reports under the Foreign Exchange and Foreign Trade Law of Japan which may its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be required for certain payment of money made by a Credit Party pursuant to this Agreement the Lessee or any of its Subsidiaries, and (iv) will not result in the Note to a non-resident Eligible Assigneecreation or imposition of any Lien on any asset of the Lessee or any of its Subsidiaries.
(di) This Agreement The Lessee has beenheretofore furnished to the Lessor and the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (A) as of and for the fiscal year ended December 31, 2009, reported on by Ernst & Young LLP, independent public accountants, and (B) as of and for the Note when delivered hereunder will have beenfiscal quarter and the portion of the fiscal year ended March 31, duly executed 2010, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and delivered by each Credit Party results of operations and cash flows of the Lessee and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the case absence of this Agreement and by the Borrower footnotes in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party statements referred to in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practiceclause (B) above.
(e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 20072009, there has been no event, occurrence or other matter that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse ChangeEffect.
(i) Each of the Lessee and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.
(ii) Each of the Lessee and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Lessee and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(f) All written information and reports furnished (i) There are no actions, suits or proceedings by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, before any arbitrator or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no Governmental Authority pending against or, to the knowledge of the Credit PartiesLessee, threatened actionagainst or affecting the Lessee or any of its Subsidiaries (A) as to which there is a reasonable possibility of an adverse determination and that, suitif adversely determined, investigationcould reasonably be expected, litigation individually or proceedingin the aggregate, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have result in a Material Adverse Effect (other than the Disclosed Matters) or (bB) purports to affect that involve any of the legality, validity or enforceability of this Agreement Operative Agreements or the consummation of the transactions contemplated herebyTransactions.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each Effective as of the Initial Closing Date, the date of each Advance, the date each Domestic Subsidiary delivers a Joinder Agreement and the Rent Commencement Date, each Credit Party represents and warrants as to each of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):other parties hereto that:
(a) The Incorporated Representations and Warranties are true and correct (unless such relate solely to an earlier point in time) and the Lessee has delivered to the Agent the financial statements and other reports referred to in Section 3.04(a) of the Lessee Credit Parties Agreement (except that such financial statements and reports shall be as of and for the fiscal year ended March 31, 2000);
(b) The execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements and Bond Documents as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements and Bond Documents are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approval, and do not and will not (i) are Persons duly organized, validly existing and (to the extent such concept violate any Legal Requirement which is applicable in such jurisdiction) in good standing under the laws binding on any Credit Party or any of the jurisdictions of their respective organizationits Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the Articles of Incorporation, By-Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements, the Bond Loan Documents and the Bond Documents) on any asset of any Credit Party or any of its Subsidiaries;
(c) This Agreement and the other applicable Operative Agreements and Bond Documents, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements and Bond Documents required to be executed by such Credit Party as of such date;
(d) There are duly qualified no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement or Bond Document to which any Credit Party is a party or the overall transaction described in the Operative Agreements and Bond Documents to which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided, for purposes of disclosure, the Credit Parties have described the litigation set forth on Exhibit K;
(e) No Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement or Bond Document, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement or Bond Document, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) any Advance, in each case, except those which have been obtained and are in full force and effect;
(f) Upon the execution and delivery of each Lease Supplement to the Lease becoming effective, (i) the Lessee will have unconditionally accepted the Property subject to the Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) Except as otherwise contemplated by the Operative Agreements or the Bond Documents, the Construction Agent shall not use the proceeds of the Bonds or of any Holder Advance or Loan for any purpose other than the purchase and/or lease of the Properties, the acquisition, installation and testing of the Equipment, the construction of Improvements and the payment of Transaction Expenses and the fees, expenses and other disbursements referenced in Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5, 7.6 and 11.8 of this Agreement, in each case which accrue prior to the Rent Commencement Date with respect to a particular Property;
(h) All information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) The principal place of business, chief executive office and office of the Construction Agent and the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement and Bond Document are kept are located at ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L;
(j) The representations and warranties of each Credit Party set forth in any of the Operative Agreements and Bond Documents are true and correct in all material respects on and as of each such date as if made on and as of such date. Each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and Bond Documents and there exists no Default or Event of Default under any of the Operative Agreements or the Bond Documents which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or Bond Document, as the case may be or otherwise waived in accordance with the applicable Operative Agreement or Bond Document, as the case may be. No Default or Event of Default will occur under any of the Operative Agreements or Bond Documents as a result of, or after giving effect to, the Advance requested by the Requisition on the date of each Advance;
(k) As of each Property Closing Date, the date of each subsequent Advance and the Rent Commencement Date only, each Property then being financed consists of (i) unimproved Land or (ii) Land and existing Improvements thereon which Improvements are either suitable for occupancy at the time of acquisition or ground leasing or will be renovated and/or modified in accordance with the terms of this Agreement. Each Property then being financed is located at the location set forth on the applicable Requisition, each of which is in one (1) of the Approved States;
(l) As of each Property Closing Date, the date of each subsequent Advance and the Rent Commencement Date only, the Lessor (or solely with respect to the Little Rock Property, the City of Little Rock) has good and marketable fee simple title to each Property (and with respect to the Little Rock Property, a valid leasehold interest enforceable against the City of Little Rock in accordance with the terms of the Head Lease), or, if any Property is the subject of a Ground Lease, the Lessor will have a valid ground leasehold interest enforceable against the ground lessor of such Property in accordance with the terms of such Ground Lease, subject only to (i) such Liens referenced in Sections 6.2(r)(i) through (iv) on the applicable Property Closing Date and (ii) subject to Section 5.7, Permitted Liens after the applicable Property Closing Date;
(m) As of each Property Closing Date, the date of each subsequent Advance and the Rent Commencement Date only, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in good standing accordance with the National Flood Insurance Act of 1968, as amended;
(n) As of each Property Closing Date, the date of each subsequent Advance and the Rent Commencement Date only, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) As of each Property Closing Date, the date of each subsequent Advance and the Rent Commencement Date only, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the that failure to so qualify or be licensedcomply therewith, either individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conducted.;
(bp) The executionAs of each Property Closing Date, delivery and performance by the date of each Credit Party of this Agreement subsequent Advance and the NoteRent Commencement Date only, all utility services and facilities necessary for the construction and operation of the Improvements and the consummation installation and operation of the transactions contemplated hereby Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land or therebywill be constructed prior to the Completion Date for such Property;
(q) As of each Property Closing Date, are within the date of each subsequent Advance and the Rent Commencement Date only, acquisition, installation and testing of the Equipment (if any) and construction of the Improvements (if any) to such Credit Party’s corporate powers, date shall have been duly authorized by all necessary corporate actionperformed in a good and workmanlike manner, substantially in accordance with the applicable Plans and do not contravene Specifications;
(i) The Security Documents create, as security for the Obligations (as such Credit Party’s charter or by-laws (or similar organizational documentsterm is defined in the Security Agreement), (iivalid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title commitment issued under Section 5.3(g) any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award applicable with respect to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contractapplicable Property, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting to the extent such Credit Party (other than the Yen Notes) or any of its properties or assets.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance title commitment has been approved by the Credit Parties Agent. Upon recordation of this Agreement the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Construction Agent or the NoteLessee, or for the consummation of any of Lien created by the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party Mortgage Instrument in the case of this Agreement and by the Borrower real property described therein shall be a perfected first priority mortgage Lien on such real property (or, in the case of the Note. This Agreement isHead Lease or a Ground Lease, on the leasehold estate under the Head Lease or such Ground Lease, as the case may be) in favor of the Agent, for the ratable benefit of the Lenders and the Note when delivered hereunder will beHolders, as their respective interests appear in the Operative Agreements. To the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Construction Agent or the Lessee, upon filing of the Lender Financing Statements in such filing offices, the legalsecurity interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(ii) The Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and binding obligation enforceable security interests in, and Liens on, each Property leased thereunder, in favor of each Credit Party the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title commitment issued under Section 5.3(g) with respect to the applicable Property, to the extent such title commitment has been approved by the Agent. Upon recordation of the memorandum of the Lease Agreement and the memorandum of a Ground Lease (or, in either case, a short form lease) in the case of this real estate recording office in the applicable Approved State identified by the Construction Agent or the Lessee, the Lien created by the Lease Agreement and in the real property described therein shall be a perfected first priority mortgage Lien (subject to the Lien of the Borrower Mortgage Instrument referenced in Section 6.2(r)(i)) on such real property (or, in the case of the NoteHead Lease or a Ground Lease, enforceable against such Credit Party the leasehold estate under the Head Lease or Ground Lease) in accordance with their respective terms, except to favor of the Lessor. To the extent that the enforceability thereof may security interests in the portion of any Property comprised of personal property can be limited perfected by the effect filing in the filing offices in the applicable Approved State or elsewhere identified by the Construction Agent or the Lessee upon filing of any applicable bankruptcythe Lessor Financing Statements in such filing offices, insolvencya security interest created by the Lease Agreement shall be perfected first priority security interests in such personal property in favor of the Lessor, reorganizationwhich rights pursuant to the Lessor Financing Statements are assigned to the Agent, moratorium for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(iii) the Bond Indenture creates, as security for the City of Little Rock's obligations under the Bond Documents, valid and enforceable security interests in, and Liens on, the Bond Trust Estate, in favor of the Bond Trustee, for the benefit of the Series ▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and such security interest and Liens are subject to no other Liens (and are specifically subordinate to the rights of the Lessor under the Head Lease) other than Liens which are expressly set forth as title exceptions on the title commitment issued under 5.3(g) with respect to the Little Rock Property, to the extent such commitment has been approved by the Agent. Upon recordation of the Bond Indenture in the real estate records of the Circuit Clerk and Ex-officio Recorder of Pulaski County, Arkansas, the Lien created by the Bond Indenture in the real property described therein shall be a perfected mortgage Lien on such real property in favor of the Bond Trustee, for the benefit of the Series ▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇. To the extent that security interests in the portion of the Bond Trust Estate comprised of personal property can be perfected by filing in the filing offices of the State of Arkansas or similar laws now elsewhere identified by the Construction Agent or hereafter the Lessee, upon filing of the Bond Financing Statements in effect relating such filing offices, the security interests created by the Bond Indenture shall be perfected in such personal property, subject only to or affecting creditors’ the prior rights generally or by general principles of equity or similar principles the Lessor under Japanese practicethe Head Lease, in favor of the Bond Trustee, for the benefit of the Series ▇▇▇▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(eiv) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its SubsidiariesAssignments create, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each security for the fiscal year then ended, accompanied by an opinion Series 2000-B Bond Purchaser's obligations under the Bond Loan Note and in consideration of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have a Material Adverse Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).re
Appears in 1 contract
Representations and Warranties of the Credit Parties. Each The Credit Party represents Parties represent and warrants warrant as of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):follows:
(a) The Each of the Credit Parties (i) are Persons is a corporation duly organized, validly existing and (to the extent such concept is applicable in such jurisdiction) in good standing under the laws of the jurisdictions jurisdiction of their respective organization, (ii) are duly qualified and in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (its incorporation or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conductedformation.
(b) The execution, delivery and performance by each Credit Party of this Agreement Amendment and the Noteperformance by each Credit Party of its obligations under the Five-Year Credit Agreement, and the consummation of the transactions contemplated hereby or therebyas amended hereby, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene and will not, by the passage of time, the giving of notice or otherwise, (i) such require any of the Credit Party’s charter Parties or by-laws (any of their Subsidiaries to obtain any Governmental Approval not otherwise already obtained or similar organizational documents)violate any Applicable Law relating to the Credit Parties or any of their Subsidiaries, (ii) any lawconflict with, statuteresult in a breach of or constitute a default under the articles of incorporation, rule bylaws or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to other organizational documents of the Guarantor or any of its Subsidiaries Credit Parties or any of their Subsidiaries or any indenture or other material agreement or instrument to which such Person is a party or by which any of its properties may be bound or assets any Governmental Approval relating to such Person except as could not reasonably be expected to have a Material Adverse Effect, or (iii) result in or require the creation or imposition of any material contract, loan agreement, indenture, mortgage, deed of trust, lease Lien upon or other instrument binding on with respect to any property now owned or affecting hereafter acquired by such Credit Party (Person other than a Lien permitted under the Yen Notes) or any terms of its properties or assetsthe Loan Documents.
(c) No authorization or approval or Each of the Credit Parties has the right, power and authority and has taken all necessary corporate and other action by, and no notice to or filing with, any Governmental Authority is required for authorize the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement Amendment and the Note to a nonperformance of its obligations the Five-resident Eligible Assignee.
(d) Year Credit Agreement, as amended hereby, in accordance with their respective terms. This Agreement Amendment has been, and the Note when delivered hereunder will have been, been duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case duly authorized officers of the Note. This Agreement isCredit Parties and such document constitutes, and each of the Note when delivered hereunder will beLoan Documents does and continues to constitute, the legal, valid and binding obligation of the Credit Parties and, if applicable, each Credit Party in the case of this Agreement and of the Borrower in the case of the Notetheir Subsidiaries party thereto, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof as such enforcement may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws now or hereafter from time to time in effect relating to or affecting which affect the enforcement of creditors’ ' rights generally or by in general principles and the availability of equity or similar principles under Japanese practiceequitable remedies.
(ed) The Consolidated balance sheet of (iExcept for matters existing on the Closing Date and set forth on Schedule 7.1(q) to the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its SubsidiariesFive-Year Credit Agreement, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007amended hereby, there has been are no Material Adverse Change.
(f) All written information and reports furnished by actions, suits or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no proceedings pending ornor, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation against or proceeding, including, without limitation, affecting the Credit Parties or any Environmental Action, affecting Subsidiary thereof or any member of the Group their respective properties in any court or before any courtarbitrator of any kind or before or by any Governmental Authority, governmental agency or arbitrator that (a) which could reasonably be reasonably likely expected to have a Material Adverse Effect or (b) purports which relate to affect the legality, validity or enforceability of this Agreement Amendment or the consummation of the transactions contemplated any Loan Documents, as amended hereby.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).
Appears in 1 contract
Sources: Five Year Credit Agreement (Jones Apparel Group Inc)
Representations and Warranties of the Credit Parties. Each Effective as of the Initial Closing Date, the date of each Advance, the date each Domestic Subsidiary or Parent, as the case may be, delivers a Joinder Agreement and the Rent Commencement Date, each Credit Party represents and warrants as to each of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):other parties hereto that:
(a) The Lessee has delivered to the Agent the financial statements and other reports referred to in Section 8.3A(a)(i) and (ii) hereof;
(b) The execution and delivery by each Credit Parties Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approval, and do not and will not (i) are Persons duly organized, validly existing and (to the extent such concept violate any Legal Requirement which is applicable in such jurisdiction) in good standing under the laws binding on any Credit Party or any of the jurisdictions of their respective organizationits Subsidiaries, (ii) are duly qualified and contravene or conflict with, or result in good standing a breach of, any provision of the Articles of Incorporation, By-Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the extent terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) This Agreement and the other applicable Operative Agreements executed prior to and as of such concept is applicable date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against the such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such jurisdictionCredit Party as of such date;
(d) as foreign corporations There are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the equivalent thereoffull performance of any Operative Agreement or any transaction contemplated thereby) in each other jurisdiction in which such qualification is required by lawthat (i) concern any Property or any Credit Party's interest therein, except where (ii) question the failure to so qualify validity or be licensed, either individually enforceability of any Operative Agreement or any transaction described in the aggregate, Operative Agreements or (iii) shall have or could not reasonably be expected to have a Material Adverse Effect; provided, and (iii) for purposes of disclosure, the Credit Parties have all corporate power and authority to own or lease and operate their properties and to carry described the litigation set forth on their respective businesses as now conducted and as proposed to be conducted.Exhibit J;
(be) The execution, delivery and performance No Governmental Action by each Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Credit Party’s charter or by-laws (or similar organizational documents), (ii) any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, loan agreement, indenture, mortgage, deed of trust, lease Governmental Authority or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any of its properties or assets.
(c) No authorization or approval authorization, registration, consent, approval, waiver, notice or other action by, and no notice to or filing withof any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any Governmental Authority other reason is required for to authorize or is required in connection with (i) the due execution, delivery and or performance by the Credit Parties of this Agreement or the Note, or for the consummation of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the transactions contemplated hereby acquisition, ownership, construction, completion, occupancy, operation, leasing or therebysubleasing of any Property or (iv) any Advance, in each case, except (i) as those which have been obtained or made and are in full force and effect, ;
(iif) as may be required because Upon the execution and delivery of the legal Lease and regulatory status of the Lender or because of any other facts specifically pertaining each Lease Supplement to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee.
(d) This Agreement has beenLease, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice.
(e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) Lessee will have unconditionally accepted the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished Property subject to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have a Material Adverse Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).the
Appears in 1 contract
Sources: Participation Agreement (Veritas Software Corp /De/)
Representations and Warranties of the Credit Parties. Each The Credit Party represents Parties represent and warrants warrant as of the date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):follows:
(a) The Each of the Credit Parties (i) are Persons is a corporation duly organized, validly existing and (to the extent such concept is applicable in such jurisdiction) in good standing under the laws of the jurisdictions jurisdiction of their respective organization, (ii) are duly qualified and in good standing (to the extent such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify or be licensed, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conductedits incorporation.
(b) The execution, delivery and performance by each Credit Party of this Agreement Amendment and the Noteperformance by each Credit Party of its obligations under the Five-Year Credit Agreement, and the consummation of the transactions contemplated hereby or therebyas amended hereby, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene and will not, by the passage of time, the giving of notice or otherwise, (i) such require any of the Credit Party’s charter Parties or by-laws (any of their Subsidiaries to obtain any Governmental Approval not otherwise already obtained or similar organizational documents)violate any Applicable Law relating to the Credit Parties or any of their Subsidiaries, (ii) any lawconflict with, statuteresult in a breach of or constitute a default under the articles of incorporation, rule bylaws or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to other organizational documents of the Guarantor or any of its Subsidiaries Credit Parties or any of their Subsidiaries or any indenture or other material agreement or instrument to which such Person is a party or by which any of its properties may be bound or assets any Governmental Approval relating to such Person except as could not reasonably be expected to have a Material Adverse Effect, or (iii) result in or require the creation or imposition of any material contract, loan agreement, indenture, mortgage, deed of trust, lease Lien upon or other instrument binding on with respect to any property now owned or affecting hereafter acquired by such Credit Party (Person other than a Lien permitted under the Yen Notes) or any terms of its properties or assetsthe Loan Documents.
(c) No authorization or approval or Each of the Credit Parties has the right, power and authority and has taken all necessary corporate and other action by, and no notice to or filing with, any Governmental Authority is required for authorize the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement Amendment and the Note to a nonperformance of its obligations the Five-resident Eligible Assignee.
(d) Year Credit Agreement, as amended hereby, in accordance with their respective terms. This Agreement Amendment has been, and the Note when delivered hereunder will have been, been duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case duly authorized officers of the Note. This Agreement isCredit Parties and such document constitutes, and each of the Note when delivered hereunder will beLoan Documents does and continues to constitute, the legal, valid and binding obligation of the Credit Parties and, if applicable, each Credit Party in the case of this Agreement and of the Borrower in the case of the Notetheir Subsidiaries party thereto, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof as such enforcement may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws now or hereafter from time to time in effect relating to or affecting which affect the enforcement of creditors’ ' rights generally or by in general principles and the availability of equity or similar principles under Japanese practiceequitable remedies.
(ed) The Consolidated balance sheet of (iExcept for matters existing on the Closing Date and set forth on Schedule 7.1(q) to the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007Five-Year Credit Agreement, there has been are no Material Adverse Change.
(f) All written information and reports furnished by actions, suits or on behalf of the Credit Parties to the Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, taken as a whole, did not or will not, at the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in light of the circumstances under which any such statements were made.
(g) There is no proceedings pending ornor, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation against or proceeding, including, without limitation, affecting the Credit Parties or any Environmental Action, affecting Subsidiary thereof or any member of the Group their respective properties in any court or before any courtarbitrator of any kind or before or by any Governmental Authority, governmental agency or arbitrator that (a) which could reasonably be reasonably likely expected to have a Material Adverse Effect or (b) purports which relate to affect the legality, validity or enforceability of this Agreement Amendment or the consummation of the transactions contemplated any Loan Documents, as amended hereby.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) No member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Borrower Act of 1940, as amended).
Appears in 1 contract
Sources: Five Year Credit Agreement (Jones Apparel Group Inc)
Representations and Warranties of the Credit Parties. Each In order to induce Administrative Agent and Lenders to enter into this Agreement, each Credit Party represents and warrants as of the date hereof to Administrative Agent and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):Lenders that:
(a) The Borrower has delivered to the Administrative Agent the financial statements and other reports referred to in Subsections 5.1(a)(i) and 5.1(a)(ii);
(b) Each of Credit Parties and its Subsidiaries (i) are Persons is duly organized, validly existing and (to the extent such concept is applicable in such jurisdiction) in good standing under the laws of its jurisdiction of organization; (ii) has all requisite power and authority to own, lease and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party, and to carry out the transactions contemplated hereby and thereby; and (iii) is qualified to do business and is in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect;
(c) The execution and delivery by each Credit Party of their this Agreement and the other applicable Credit Documents as of such date and the performance by each Credit Party of its respective organizationobligations under this Agreement and the other applicable Credit Documents are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approval, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the Articles of Incorporation, By-Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien on any asset of any Credit Party or any of its Subsidiaries;
(d) This Agreement and the other applicable Credit Documents executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Credit Documents required to be executed by such Credit Party as of such date;
(e) There are duly qualified and in good standing (no material actions, suits or proceedings pending or, to the extent such concept is applicable knowledge of any Credit Party, threatened against any Credit Party in such jurisdictionany court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Credit Document or any transaction contemplated thereby) as foreign corporations that (i) question the validity or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to so qualify enforceability of any Credit Document or be licensed, either individually or any transaction described in the aggregate, Credit Documents or (ii) shall have or could not reasonably be expected to have a Material Adverse Effect; provided, and (iii) for purposes of disclosure, the Credit Parties have all corporate power and authority to own or lease and operate their properties and to carry described the litigation set forth on their respective businesses as now conducted and as proposed to be conducted.Schedule 4.1(e);
(bf) The No Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery and or performance by each of any Credit Party of this Agreement and the Note, and the consummation of the transactions contemplated hereby or thereby, are within such Credit Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) such Credit Party’s charter or by-laws (or similar organizational documents)Document, (ii) the legality, validity, binding effect or enforceability of any lawCredit Document, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to the Guarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contractBorrowing, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any of its properties or assets.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or therebyin each case, except (i) as those which have been obtained or made and are in full force and effect, ;
(iig) as may be required because of All information (including without limitation the legal financial statements and regulatory status of the Lender or because of any other facts specifically pertaining reports delivered to the Lender Administrative Agent pursuant to Section 5.1(a)(i) and (iii5.1(a)(ii)) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made heretofore or contemporaneously herewith furnished by a each Credit Party pursuant or its Subsidiaries to the Administrative Agent, or any Lender for purposes of or in connection with this Agreement and the Note to a non-resident Eligible Assignee.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement transactions contemplated hereby is, and the Note when delivered hereunder will be, the legal, valid and binding obligation of each Credit Party in the case of this Agreement and of the Borrower in the case of the Note, enforceable against such Credit Party in accordance with their respective terms, except to the extent that the enforceability thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or all information hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice.
(e) The Consolidated balance sheet of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the each Credit Parties Party or its Subsidiaries to the Administrative Agent or any Lender pursuant hereto or in connection with herewith will be, true and accurate in every material respect on the negotiation ofdate as of which such information is dated or certified, or pursuant to the terms of, this Agreementand such information, taken as a whole, did does not or and will not, at the time furnished, contain any untrue statement of a material fact or not omit to state a any material fact necessary to make the statements contained therein such information, taken as a whole, not misleading, in light of the circumstances under which any such statements were made.
(g) There is no pending or, to the knowledge of the Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Group before any court, governmental agency or arbitrator that (a) could be reasonably likely to have a Material Adverse Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.;
(h) The Borrower is not engaged in the principal place of business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U and chief executive office of the Board of Governors of Borrower where the Federal Reserve System)documents, accounts and no proceeds of records relating to the Loan will be used transactions contemplated by this Agreement and each other Credit Document are kept are located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Mountain View, California 94043 or at such other principal location which Borrower may hereafter specify in writing upon thirty (30) days prior written notice to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stockAdministrative Agent.
(i) No member The representations and warranties of each Credit Party set forth in any of the Group Credit Documents are true and correct in all material respects on and as of each such date as if made on and as of such date. Each Credit Party is an “investment company”, in all material respects in compliance with its respective obligations under the Credit Documents and there exists no Default under any of the Credit Documents which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Credit Document or an “affiliated person” otherwise waived in accordance with the applicable Credit Document. No Default will occur under any of the Credit Documents as a result of, or “promoter” or “principal underwriter” forafter giving effect to, an “investment company” the Borrowing requested by the Notice of Borrowing on the date of each Borrowing;
(each as defined j) As of September 30, 1999, all of the following had occurred (in the Investment order designated below):
(i) the merger of Merger Sub with and into the Borrower Act occurred (making the Borrower a wholly-owned Subsidiary of 1940the Parent) in accordance with the terms of the Reorganization Agreement and applicable law;
(ii) each share of Capital Stock of the Borrower was converted into one share of Capital Stock of the Parent in accordance with the terms of the Reorganization Agreement and applicable law;
(iii) the Parent acquired all of the Capital Stock of NSMG and the NSMG Business in accordance with the terms of the Reorganization Agreement and applicable law; and
(k) as of June 30, as amended)2000, all of the following had occurred (in the order designated below):
(i) VERITAS Software Corporation contributed all of the Capital Stock of VERITAS Software Global Corporation (formerly NSMG) to VERITAS Operating Corporation (making Borrower a wholly-owned Subsidiary of VERITAS Operating Corporation) in accordance with the terms of the Capital Contribution Agreement dated June 28, 2000 and applicable law.
(ii) VERITAS Software Corporation contributed assets to VERITAS Operating Corporation in accordance with the terms of the Capital Contribution Agreement dated June 28, 2000 and applicable law.
(iii) VERITAS Operating Corporation contributed assets to VERITAS Software Global Corporation in accordance with the terms of the Contribution Agreement dated June 30, 2000 and applicable law.
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