Representations and Warranties of the Guarantor. The Guarantor represents and warrants as follows: (a) Each Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. (b) The execution, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it. (d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms. (e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change. (f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby. (g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. (i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Omnicom Group Inc), Credit Agreement (Omnicom Group Inc)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.
(b) The execution, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 20032004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 20042005, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 20042005, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 20032004, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Omnicom Group Inc), Five Year Credit Agreement (Omnicom Group Inc)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as followsto each Holder that:
(a) Each Loan Party The Guarantor is a corporation limited liability company duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization, and is duly qualified as a foreign limited liability company and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (1) the ability of the Guarantor to perform its organizationobligations under this Guaranty, or (2) the validity or enforceability of this Guaranty (herein in this Section 5, a "Material Adverse Effect"). The Guarantor has the power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts, to execute and deliver this Guaranty and to perform the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary organizational action on the part of the Guarantor or the Company, as the case may be, and this Guaranty constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance by each Loan Party the Guarantor of this Agreement and Guaranty will not (1) contravene, result in any breach of, or constitute a default under, or result in the Notes to be delivered by it, and the consummation creation of any Lien in respect of any property of the transactions contemplated hereby, are within the such Loan Party's Guarantor under its corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws laws, or other organizational documents equivalent formation or (ii) law governing document, or except for contraventions, breaches or defaults which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, under any contractual restriction binding on indenture, mortgage, deed of trust, loan, purchase or affecting any Loan Party.
(c) No authorization or approval or other action bycredit agreement, and no notice to or filing withlease, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement agreement or the Notes instrument to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency subsidiaries is bound or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on by which the Guarantor or any of its Subsidiariessubsidiaries or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the Disclosed Litigation from that described on Schedule 3.01(b) hereto terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Guarantor or (ii3) purports violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated herebyGuarantor.
(gd) No Loan Party consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is engaged required in connection with the business of extending credit for the purpose of purchasing execution, delivery or carrying margin stock (within the meaning of Regulation U issued performance by the Board Guarantor of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stockthis Guaranty.
(he) No Loan Party is an "investment company"Subject to the limitation set forth in Section 2(b) of this Guaranty, the Guarantor has assets which exceed the aggregate amount of its liabilities, has capital not unreasonably small in relation to its business or any contemplated or undertaken transaction and has assets having a value both at fair valuation and at present fair salable value (under normal business conditions) greater than the amount required to pay its liabilities (including contingent and unliquidated liabilities) as they become due and greater than the amount that will be required to pay its probable liability on its existing liabilities as they become absolute and matured. The Guarantor does not intend to incur, or a company "controlled" believe that it will incur, debts beyond its ability to pay such debts as they become due. Subject to the limitation set forth in Section 2(b) of this Guaranty, the Guarantor will not be rendered insolvent by an "investment company"the execution and delivery of, within the meaning and performance of the Investment Company Act of 1940its obligations under, as amended.
(i) All factual information (taken as a whole) heretofore this Guaranty. The Guarantor does not intend to hinder, delay or contemporaneously furnished defraud its creditors by or on behalf through the execution and delivery of, or performance of any Loan Party in writing to any Lender (includingits obligations under, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was providedGuaranty.
Appears in 2 contracts
Sources: Note Purchase Agreement (Evans Bob Farms Inc), Subsidiary Guaranty (Evans Bob Farms Inc)
Representations and Warranties of the Guarantor. The To induce the other Parties to enter into this Amendment, the Guarantor hereby reaffirms as to itself and its Subsidiaries, as of the date hereof, its representations and warranties contained in Section 3.01 of the Guaranty (except to the extent such representations and warranties relate solely to an earlier date) and additionally represents and warrants as follows:
(a) Each Loan Party The Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all corporate powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals which the failure to have could not reasonably be expected to have a material adverse effect on the business, assets, condition or operation of the Guarantor and its Subsidiaries taken as a whole. Each Material Subsidiary of the Guarantor is duly organized or validly formed, validly existing and (if applicable) in good standing under the laws of its jurisdiction of incorporation or formation, except where the failure to be so organized, existing and in good standing could not reasonably be expected to have a material adverse effect on the business, assets, condition or operations of the Guarantor and its organizationSubsidiaries taken as a whole. Each Material Subsidiary of the Guarantor has all corporate or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals which the failure to have could not reasonably be expected to have a material adverse effect on the business, assets, condition or operation of the Guarantor and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by each Loan Party the Guarantor of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, by this Agreement are within the such Loan PartyGuarantor's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan PartyGuarantor's charter or by-laws or other organizational documents or (ii) any law or any contractual restriction binding on or affecting the Guarantor and will not result in or require the creation or imposition of any Loan PartyLien.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party Guarantor of this Agreement or the Notes to be delivered consummation of the transactions contemplated by itthis Agreement.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by each Loan Party party theretothe Guarantor. This Agreement is, and each of the Notes when delivered hereunder will be, Guaranty as amended by this Agreement are the legal, valid and binding obligation obligations of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by general principles of equity.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries Except as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, set forth in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003Public Filings, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation action or proceeding, including, without limitation, any Environmental Action, proceeding affecting the Guarantor or any Material Subsidiary of its Subsidiaries the Guarantor (or in the case of the Guarantor, the Borrowers, any Subsidiary of a Borrower or any WCG Subsidiary) before any court, governmental agency or arbitrator that (i) arbitrator, which could reasonably be reasonably likely expected to have a Material Adverse Effect (other than materially and adversely affect the Disclosed Litigation), and there has been no adverse change in the status, financial condition or financial effect on operations of the Guarantor and its Subsidiaries taken as a whole or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) which purports to affect the legality, validity validity, binding effect or enforceability of this Agreement Agreement, the Guaranty or any Note or other Operative Document. For the consummation purposes of this Section, "Public Filings" shall mean the respective annual reports of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit Guarantor on Form 10-K or Form 10-K/A for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)year ended December 31, 1999, and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others the Guarantor's quarterly reports on Form 10-Q for the purpose of purchasing or carrying any margin stockquarter ended September 30, 2000.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 2 contracts
Sources: Amendment, Waiver and Consent (Williams Companies Inc), Amendment, Waiver and Consent (Williams Companies Inc)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as followsto each Holder that:
(a) Each Loan Party The Guarantor is a corporation limited liability company duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization, and is duly qualified as a foreign limited liability company and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (1) the ability of the Guarantor to perform its organizationobligations under this Guaranty, or (2) the validity or enforceability of this Guaranty (herein in this Section 5, a “Material Adverse Effect”). The Guarantor has the power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts, to execute and deliver this Guaranty and to perform the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary organizational action on the part of the Guarantor or the Company, as the case may be, and this Guaranty constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance by each Loan Party the Guarantor of this Agreement and Guaranty will not (1) contravene, result in any breach of, or constitute a default under, or result in the Notes to be delivered by it, and the consummation creation of any Lien in respect of any property of the transactions contemplated hereby, are within the such Loan Party's Guarantor under its corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws laws, or other organizational documents equivalent formation or (ii) law governing document, or except for contraventions, breaches or defaults which could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, under any contractual restriction binding on indenture, mortgage, deed of trust, loan, purchase or affecting any Loan Party.
(c) No authorization or approval or other action bycredit agreement, and no notice to or filing withlease, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement agreement or the Notes instrument to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency subsidiaries is bound or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on by which the Guarantor or any of its Subsidiariessubsidiaries or any of their respective properties may be bound or affected, (2) conflict with or result in a breach of any of the Disclosed Litigation from that described on Schedule 3.01(b) hereto terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Guarantor or (ii3) purports violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated herebyGuarantor.
(gd) No Loan Party consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is engaged required in connection with the business of extending credit for the purpose of purchasing execution, delivery or carrying margin stock (within the meaning of Regulation U issued performance by the Board Guarantor of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stockthis Guaranty.
(he) No Loan Party is an "investment company"Subject to the limitation set forth in Section 2(b) of this Guaranty, the Guarantor has assets which exceed the aggregate amount of its liabilities, has capital not unreasonably small in relation to its business or any contemplated or undertaken transaction and has assets having a value both at fair valuation and at present fair salable value (under normal business conditions) greater than the amount required to pay its liabilities (including contingent and unliquidated liabilities) as they become due and greater than the amount that will be required to pay its probable liability on its existing liabilities as they become absolute and matured. The Guarantor does not intend to incur, or a company "controlled" believe that it will incur, debts beyond its ability to pay such debts as they become due. Subject to the limitation set forth in Section 2(b) of this Guaranty, the Guarantor will not be rendered insolvent by an "investment company"the execution and delivery of, within the meaning and performance of the Investment Company Act of 1940its obligations under, as amended.
(i) All factual information (taken as a whole) heretofore this Guaranty. The Guarantor does not intend to hinder, delay or contemporaneously furnished defraud its creditors by or on behalf through the execution and delivery of, or performance of any Loan Party in writing to any Lender (includingits obligations under, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was providedGuaranty.
Appears in 1 contract
Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants as followsto the Sellers that:
(a) Each Loan Party it is a corporation duly organized, validly existing and in good standing under the laws Laws of the its jurisdiction of formation and has all requisite power and authority to enter into this Guaranty and to carry out its organization.
(b) obligations hereunder. The executionGuarantor is duly licensed and qualified to do business and is in good standing in each jurisdiction in which the properties owned or leased by it or the operation of its business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed or qualified or in good standing would not, individually or in the aggregate, have a material adverse effect on the Guarantor’s ability to perform its obligations under this Guaranty. The execution and delivery of this Guaranty by the Guarantor and the performance by each Loan Party the Guarantor of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, its obligations hereunder have been duly authorized by all necessary corporate actionrequisite action on the part of the Guarantor and its stockholders or members, as applicable;
(b) this Guaranty has been duly executed and do not contravene delivered by the Guarantor and, assuming due and valid authorization, execution and delivery by the Sellers, this Guaranty constitutes a legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except (i) the such Loan Party's charter or by-laws or as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other organizational documents or similar Laws of general application affecting enforcement of creditors’ rights generally and (ii) law the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any contractual restriction binding on or affecting any Loan Party.proceeding therefor may be brought;
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party Guarantor of this Agreement Guaranty does not and will not: (i) violate, conflict with or result in any breach of any provision of the Notes certificate of incorporation or bylaws (or similar organizational documents) of the Guarantor, (ii) except for any required filings for the Regulatory Approval and the Antitrust Approval and with the SEC and the FCC, require the Guarantor to make any filing with, obtain any permit, authorization, consent or approval from, or provide any notification to, any Governmental Entity, (iii) result in a violation or breach of, or, with or without due notice or lapse of time or both, constitute a default or give rise to any right of termination, cancellation or acceleration under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Guarantor is a party or by which the Guarantor’s shares or properties or assets may be delivered by it.bound, or (iv) violate any Law or Governmental Order applicable to the Guarantor;
(d) This Agreement the Guarantor has beenand will have at all times on or immediately prior to the payment in full of any and all payments required to be made by it hereunder (and payment in full of the payment obligations of the Primary Obligors under (i) the SPA, (ii) the Transition Services MOU and (iii) the Drag Waiver MOU, sufficient cash on hand or other sources of funds immediately available without conditions, to enable the Guarantor to pay and perform its obligations under this Guaranty, including to pay (i) the Purchase Price, (ii) the Transition Services Availability Payment (as such term is defined in the Transition Services MOU), (iii) the Waiver and Amendment Fee (as such term is defined in the Drag Waiver MOU) and (iv) the Dividend Adjustment Amount, if any, in each case, in full in immediately available funds in US Dollars outside of Argentina on the date on which it is required to be paid, and each of to pay all related fees and expenses related to the Notes to be delivered transactions contemplated by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, the SPA and each other Transaction Document, as applicable. The Guarantor does not need additional financing in connection with the payment and performance of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.its obligations under this Guaranty;
(e) The Consolidated balance sheet none of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements assets of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any Affiliate of its Subsidiaries before the Guarantor has been reported as blocked assets to OFAC, pursuant to the OFAC reporting requirements (31 C.F.R. Section 501.603). Neither the Guarantor nor any courtAffiliates of the Guarantor is an OFAC Listed Person or is a department, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the statusinstrumentality of, or financial effect is otherwise controlled by or acting on or behalf of, directly or indirectly, a Blocked Person. None of the funds with which the Guarantor will pay and perform its obligations under this Guaranty or any of its Subsidiaries, of other amounts pursuant to the Disclosed Litigation Transaction Documents constitute or will constitute funds obtained from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party OFAC Listed Person or any Blocked Person; and
(f) the Guarantor, in writing to providing this Guaranty, is not relying on any Lender (includingexplicit or implicit representations by the Sellers, without limitationtheir Affiliates, all information contained in this Agreement) for purposes of the Primary Obligors or any other person or persons, whether oral or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was providedwriting.
Appears in 1 contract
Sources: Guaranty (Telecom Italia S P A)
Representations and Warranties of the Guarantor. The In order to induce the Lender to make the Loan to the Borrower, the Guarantor represents represents, warrants and warrants as followscovenants (and shall be deemed to continuously represent, warrant and covenant during the term of this Guaranty) that:
(a) Each Loan Party the Guarantor is a corporation duly organizedincorporated or established and is in existence, validly existing and in good standing standing, under the laws of the jurisdiction of its organization.organization or creation and the Guarantor has the full capacity, power, authority and legal right to own its property and assets and to transact the business in which it is engaged;
(b) The the Financial Statements are correct and complete and fairly present the financial position of the Guarantor as of the date indicated therein and the results of its operation and the changes in its financial position for the years then ended in accordance with GAAP. Since the date of its last Financial Statements, there has been no change in the financial condition of the Guarantor other than changes in the ordinary course of business and changes arising from the plans of the Guarantor to complete the Project. All financial information relating to the Guarantor which has been delivered to the Lender, is complete and accurate in all material respects in light of the circumstances prevailing at the time of delivery;
(c) the Guarantor has the power to execute, deliver and perform this Guaranty and has taken all necessary corporate action to authorize the execution, delivery and performance by each Loan Party it of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.Guaranty;
(d) This Agreement the Guarantor has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement isthis Guaranty, and each of the Notes when delivered hereunder will be, this Guaranty constitutes the legal, valid and binding obligation of each Loan Party party thereto the Guarantor enforceable against such Loan Party in accordance with their respective its terms.;
(e) The Consolidated balance sheet neither the execution, delivery or performance by the Guarantor of this Guaranty, nor compliance by it with the terms and provisions hereof, will (i) contravene any provision of any applicable law, statute, rule or regulation or any applicable order, writ, injunction or decree of any court or governmental instrumentality; (ii) conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien or encumbrance (other than liens and encumbrances in favour of the Lender) upon any of the property or assets of the Guarantor and pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or any other agreement, contract or instrument to which Guarantor is a party or by which it or any of its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows property or assets is bound or to which it may be subject; or (iii) violate any provision of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer organizational documents of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.;
(f) There is no pending ororder, to the knowledge of the Guarantorconsent, threatened actionapproval, suitlicense, investigationauthorization or validation of, litigation or proceedingfiling, includingrecording or registration with (except as have been obtained or made), without limitationor exemption by, any Environmental Actiongovernmental or public body or authority, affecting the Guarantor or any of its Subsidiaries before any courtsubdivision thereof, governmental agency is required to authorize, or arbitrator that is required for, (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation)execution, delivery and there has been no adverse change in performance of this Guaranty by the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto Guarantor; or (ii) purports to affect the legality, validity validity, binding effect or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.Guaranty;
(g) No Loan Party is engaged the Guarantor’s obligations hereunder rank at least paripassu in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors all respects with all other unsecured and unsubordinated obligations of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.Guarantor;
(h) No Loan Party is an "investment company"there are no actions, suits or a company "controlled" by an "investment company"proceedings pending or threatened (i) with respect to this Guaranty; or (ii) with respect to the Guarantor that could reasonably be expected to materially and adversely affect (A) the business, within the meaning operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Investment Company Act Guarantor; or (B) the rights or remedies of 1940, as amended.the Lender hereunder or the ability of the Guarantor to perform its obligations to the Lender hereunder;
(i) All factual information (taken as a whole) heretofore there are no facts or contemporaneously furnished by or on behalf circumstances of any Loan Party kind or nature whatsoever of which the Guarantor has knowledge which will impair or prevent the Guarantor from performing its obligations under this Guaranty;
(j) all statements set forth in writing the Recitals are true and correct; and
(k) all of the information supplied by the Guarantor to any the Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein isherewith is true, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true complete and accurate in all material respects on and the date as Guarantor is not aware of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of facts or circumstances that have not been disclosed to the circumstances under Lender and which such might render the information was providedsupplied to the Lender seriously misleading.
Appears in 1 contract
Sources: Loan Agreement (BioAmber Inc.)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as followsto, and agrees with, each of the Representatives that:
(ai) Each Loan Party document, if any, filed or to be filed by the Guarantor pursuant to the Exchange Act and incorporated by reference in the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Time of Sale Memorandum does not, and at the time of each sale of the Securities in connection with the offering when the Final Memorandum is not yet available to prospective purchasers, and at the Closing Date (as defined in Section 6), the Time of Sale Memorandum, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) the Preliminary Memorandum does not contain, and the Final Memorandum, in the form used by the Initial Purchasers to confirm sales and on the Closing Date (as defined in Section 6), will not contain, any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Preliminary Memorandum, the Time of Sale Memorandum or the Final Memorandum based upon the Selling Noteholder Information (as defined below) or information relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser through the Representatives expressly for use therein;
(b) Except for the Additional Written Offering Communications, if any, identified in Schedule II hereto, and the electronic road show related to the Notes furnished to the Representatives before first use, the Guarantor has not prepared, used or referred to, and will not, without the Representatives’ prior consent, prepare, use or refer to, any Additional Written Offering Communication;
(c) Neither the Guarantor nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, which is material to the Guarantor and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in each Memorandum; and, since the respective dates as of which information is given in each Memorandum, there has not been any material change in the consolidated capital stock or any material increase in the consolidated long-term debt of the Guarantor and its subsidiaries, taken as a whole, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position, shareholders’ equity or results of operations of the Guarantor and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in each Memorandum;
(d) The Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Illinois, with the corporate power and authority to own its properties and conduct its business as described in the Time of Sale Memorandum, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership or leasing of its property requires such qualification, except where failure to be so qualified or in good standing would not, in the aggregate, have a material adverse effect upon the Guarantor and its subsidiaries, taken as a whole;
(e) Each of the “Significant Subsidiaries” of the Guarantor (as such term is defined in Rule 1-02(w) of Regulation S-X promulgated under the Securities Act) has been duly organized, is validly existing and as a corporation in good standing under the laws of the jurisdiction of its organization., is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership or leasing of its property requires such qualification, except where failure to be so qualified or in good standing would not, in the aggregate, have a material adverse effect upon the Guarantor and its subsidiaries, taken as a whole;
(bf) This Agreement has been duly authorized, executed and delivered by the Guarantor;
(g) The executionGuarantee has been duly authorized and, assuming due execution and delivery by the Trustee, when executed and delivered by the Guarantor, will be a valid and binding agreement of the Guarantor, enforceable in accordance with its terms, subject to the Enforceability Exceptions; and the Guarantee conforms to the description thereof contained in each Memorandum;
(h) The Registration Rights Agreement has been duly authorized and, assuming due delivery and performance execution by each Loan Party the Representatives, when executed and delivered by the Guarantor, will be a valid and binding agreement of, the Guarantor, enforceable in accordance with its terms, subject to the Enforceability Exceptions and except as rights to indemnification and contribution may be limited under applicable law;
(i) The issue and sale of this the Securities and the compliance by the Guarantor with all of the provisions of the Guarantee, the Registration Rights Agreement, the Exchange Agreement and the Notes to be delivered by itthis Agreement, and the consummation of the transactions contemplated herebyherein and therein contemplated, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do will not contravene (i) conflict with or result in a breach or violation of any of the such Loan Party's charter terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Guarantor or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Guarantor or any of its subsidiaries is a party or by which the Guarantor or any of its subsidiaries is bound or to which any of the property or assets of the Guarantor or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the articles of incorporation or by-laws or other organizational documents laws, each as amended, of the Guarantor or (iiiii) law result in a violation of any applicable law, statute or any contractual restriction binding on order, rule or affecting regulation of any Loan Party.
court or governmental agency or body having jurisdiction over the Guarantor or any of its subsidiaries or any of their respective properties, in any such case described in clause (ci) No authorization or approval (iii) the effects of which would, individually or other action byin the aggregate, be materially adverse to the Guarantor and its subsidiaries taken as a whole; and no notice to consent, approval, authorization, order, registration or filing with, qualification of or with any such court or governmental authority agency or regulatory body or any other third party is required for the due execution, delivery issue and performance sale of the Securities or the consummation by the any Loan Party Guarantor of the transactions contemplated by this Agreement, the Guarantee, the Registration Rights Agreement or the Notes Exchange Agreement except such as have already been obtained or may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities and by Federal and state securities laws with respect to the Guarantor’s obligations under the Registration Rights Agreement and except as would not, individually or in the aggregate, be delivered materially adverse to the Guarantor’s ability to consummate the transactions contemplated by it.this Agreement, the Guarantee, the Registration Rights Agreement or the Exchange Agreement or to perform its obligations thereunder;
(dj) This Agreement has beenOther than as set forth in the Time of Sale Memorandum, there are no legal or governmental proceedings pending to which the Guarantor or any of its subsidiaries is a party or of which any property of the Guarantor or any of its subsidiaries is the subject (including, without limitation, any proceedings before the United States Food and Drug Administration or comparable Federal, state, local or foreign governmental bodies) that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to the Guarantor’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(k) Except as noted therein, the consolidated financial statements of the Guarantor, and the related notes thereto, contained in each of Memorandum present fairly in all material respects the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet consolidated financial position of the Guarantor and its Subsidiaries consolidated subsidiaries as at December 31, 2003of the dates indicated and the results of their operations and changes in their consolidated cash flows for the periods specified; and such financial statements have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis; and the pro forma financial information of the Guarantor, and the related Consolidated notes thereto, contained or incorporated by reference in each Memorandum fairly present in all material respects the information contained therein and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved and in accordance with the requirements of Regulation S-X;
(l) The Guarantor and its subsidiaries (i) make and keep accurate books and records in all material respects and (ii) maintain internal accounting controls which provide reasonable assurance that (A) transactions are executed in accordance with management’s authorization, (B) transactions are recorded as necessary to permit preparation of their financial statements and to maintain accountability for their assets, (C) access to their assets is permitted only in accordance with management’s authorization and (D) the reported accountability for their assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any difference;
(m) The Guarantor has established, maintains and will maintain disclosure controls and procedures (as defined in Rule 13a-15(e) of income the Exchange Act) which are designed to ensure that information required to be disclosed by the Guarantor in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and cash flows reported in accordance with the Exchange Act and the rules and regulations thereunder. The Guarantor has carried out and will carry out evaluations, under the supervision and with the participation of the Guarantor’s management of the effectiveness of the design and operation of the Guarantor’s disclosure controls and procedures in accordance with Rule 13a-15 of the Exchange Act;
(n) There is and has been no failure on the part of the Guarantor or, to the knowledge of the Guarantor, any of the Guarantor’s directors or officers, in their capacities as such, to comply in all material respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications;
(o) Deloitte & Touche LLP, which has audited and reported on certain financial statements of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, subsidiaries and the Consolidated balance sheet effectiveness of the Guarantor’s internal control over financial reporting, is an independent registered public accounting firm with respect to the Guarantor and its Subsidiaries subsidiaries as at March 31, 2004, required by the Securities Act and the related Consolidated statements Exchange Act and the rules and regulations of income the Commission and cash flows the Public Company Accounting Oversight Board;
(p) Neither the Guarantor nor any Affiliate of the Guarantor has directly, or through any agent (other than the Selling Noteholder and the Initial Purchasers, as to whom no representation or warranty is made), (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which is or will be integrated with the sale of the Securities in a manner that would require the registration under the Securities Act of the Securities or (ii) offered, solicited offers to buy or sold the Securities by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act;
(q) None of the Guarantor, its Affiliates or any person acting on its or their behalf (other than the Selling Noteholder and the Initial Purchasers, as to whom no representation or warranty is made) has engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Securities and the Guarantor and its Subsidiaries for Affiliates, and any person acting on its or their behalf has complied and will comply with the three months then ended, duly certified offering restrictions requirement of Regulation S;
(r) Assuming the accuracy of the representations and warranties of the Selling Noteholder and the Initial Purchasers and compliance by the chief financial officer Selling Noteholder and Initial Purchasers with the terms of the GuarantorAgreement, copies it is not necessary in connection with the offer, sale and delivery of which have been furnished the Securities to each Lender, fairly present, subject, the Initial Purchasers and the initial resale of the Securities by the Initial Purchasers to investors in the case manner contemplated by this Agreement to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of said balance sheet 1939, as at March 31amended;
(s) The Securities satisfy the requirements set forth in Rule 144A(d)(3) under the Securities Act;
(t) Neither the Guarantor nor any of its subsidiaries or Affiliates, 2004directors or officers, and said statements nor to the Guarantor’s knowledge any employees, agents or representatives of income and cash flows for the three months then endedGuarantor or of any of its subsidiaries or Affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to yearany “government official” (including any officer or employee of a government or government-end audit adjustmentsowned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the Consolidated financial condition of foregoing, or any political party or party official or candidate for political office) to improperly influence official action or secure an improper advantage; and the Guarantor and its Subsidiaries as at subsidiaries and Affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained policies and procedures designed to promote and achieve compliance with such dates laws and with the Consolidated results of the representation and warranty contained in this paragraph;
(u) The operations of the Guarantor and its Subsidiaries for subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the periods ended on such dates, all in accordance Guarantor or any of its subsidiaries with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There respect to the Anti-Money Laundering Laws is no pending or, to the knowledge of the Guarantor, threatened threatened, except for any such action, suit, investigation, litigation suit or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to proceeding as would not have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no material adverse change in the status, or financial effect on the Guarantor or any of Company and its Subsidiariessubsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or taken as a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.whole;
(i) All factual information To the Guarantor’s knowledge, none of the Guarantor and its subsidiaries or any of their respective officers or directors is a Person that is an Embargoed Person; provided that if any subsidiary of the Guarantor becomes an Embargoed Person pursuant to clause (taken B)(3) of the definition thereof as a whole) heretofore result of a country or contemporaneously furnished by or on behalf of any Loan Party in writing territory becoming subject to any Lender applicable Sanctions program after the Closing Date, such Person shall not be an Embargoed Person so long as (including, without limitation, all information contained A) the Guarantor is taking reasonable steps to either obtain an appropriate license for transacting business in this Agreement) for purposes of such country or in connection with this Agreement territory or any transaction contemplated herein is, and all other to cause such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.Pe
Appears in 1 contract
Sources: Purchase Agreement (AbbVie Inc.)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants and so long as followsthis Security Agreement remains in effect shall, in the case of clauses (b), (d) and (e), covenant:
(a) Each Loan Party is a corporation duly organized, validly existing and in good standing under the laws of Guarantor has the jurisdiction of its organization.power to grant the Security Interest upon which it purports to grant hereunder;
(b) The executionthe Collateral is owned by the Guarantor free and clear of any and all liens, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered by itsecurity interests, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws charges or other organizational documents or encumbrances other than Permitted Liens (ii) law or any contractual restriction binding on or affecting any Loan Party.as defined in the Collateral Trust Agreement);
(c) No authorization the Guarantor’s business operations, its records, and the Collateral are all located at the locations specified in Schedule “A” attached hereto and at other locations of retail stores of the Guarantor from time to time;
(d) Guarantor has not and will not authorize any security agreement, financing statement, equivalent security or lien instrument or continuation statement covering all or any part of the Collateral except such as may have been filed (i) by the Guarantor in favor of the Collateral Trustee pursuant to this Security Agreement, and (ii) in connection with any other Permitted Liens or (iii) disclosed to the Collateral Trustee in writing as on the date hereof; and
(e) this Security Agreement is effective to create a valid and continuing lien and, upon the filing of the appropriate financing statements naming the Guarantor as “debtor” and the Collateral Trustee as “secured party” and describing the Collateral as set forth herein, a perfected lien in favor of the Collateral Trustee on the portion of the Collateral that comprises Collateral under the PPSA, with respect to which a lien may be perfected by filing financing statements pursuant to the PPSA. Such lien is prior to all other liens, except Permitted Liens. All action by the Guarantor necessary to perfect the Security Interest has been duly taken. Other than filing of the necessary PPSA financing statements, no authorization, approval or other action by, and no notice consent is required to or filing with, be obtained from any governmental authority or regulatory body or any other third party is required Person for the due executiongrant of the security interest herein on the portion of the Collateral that comprises Collateral under the PPSA, delivery and performance the perfection thereof or, except as otherwise expressly set forth in the Collateral Trust Agreement, the exercise by the any Loan Party of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed Studios of their rights and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective termsremedies hereunder.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 1 contract
Representations and Warranties of the Guarantor. (a) The Guarantor represents to Ambac that the representations and warrants as follows:
(a) Each Loan Party is a corporation duly organizedwarranties made by the Guarantor, validly existing on its own behalf and contained in Clause 3 of the Subscription Agreement and in good standing under any other Finance Documents are true and correct in all respects on the laws of the jurisdiction of its organizationdate made.
(b) The execution, delivery Guarantor makes each of the representations and performance warranties made by each Loan Party it under Clause 3 of the Subscription Agreement and in any other Finance Documents to Ambac on the date of this Agreement and on the Notes Closing Date and on any other date on which such representations and warranties are deemed to be delivered by it, repeated in the relevant Finance Document as if those representations and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Partywarranties were set out in this Agreement mutatis mutandis.
(c) No authorization or approval or other action byThe Guarantor represents to Ambac that, and except for the Put Option described in Condition 13 of the Bonds, there are no notice to or filing withput options, any governmental authority or regulatory body or any other third party is required for rights in either case having substantially the same effect as the Put Option, in relation to any indebtedness of the Guarantor, other than the obligations contained in each of (i) Condition 7 (Redemption at the Option of Bondholders) of the terms and conditions of Northern Electric Finance plc's £100,000,000 8.875 per cent. Guaranteed Bonds due execution, delivery 2020 and performance by (ii) Condition 7 (Redemption at the any Loan Party Option of this Agreement or Bondholders) of the Notes to be delivered by itterms and conditions of Northern Electric Finance plc's £100,000,000 8.625 per cent. Guaranteed Bonds due 2005.
(d) This Agreement has beenThe Guarantor represents to Ambac that there are no negative pledges, and each or any other restrictions over the granting of the Notes to be delivered by it when delivered hereunder will have beenany Security Interest upon, duly executed and delivered by each Loan Party party thereto. This Agreement isor with respect to, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer any Relevant Indebtedness of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation)Existing Negative Pledge, the Negative Pledge described in Condition 4 of the Bonds, (at any time that NEDL is a "Significant Subsidiary" as defined in the Indenture referred to below) the obligations contained in Section 1014 (Limitation on Liens) of the Indenture dated as of December 15, 1997 between, inter alios, CE Electric UK Funding Company and The Bank of New York as Trustee and relating to, inter alia, CE Electric UK Funding Company's US$237,000,000 6.995% Senior Notes due 2007, and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information obligations contained in this AgreementCondition 5 (Negative Pledge) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was providedCE Electric UK Funding Company's £200,000,000 7.25% Guaranteed Bonds due 2022.
Appears in 1 contract
Sources: Reimbursement and Indemnity Agreement (Midamerican Energy Holdings Co /New/)
Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants as followsto EBRD that:
(a) Each Loan Party the Guarantor is a corporation duly organized, organised and validly existing and in good standing under the laws of the jurisdiction of its organization.Netherlands Antilles;
(b) The execution, delivery the Guarantor is fully familiar with and performance by each Loan Party agrees to all the provisions of the Financing Agreements and the giving of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.Guarantee is for its commercial benefit;
(c) No authorization or approval or the Guarantor has full power and authority (i) to execute and deliver this Guarantee and all notices, certificates and other action bydocuments related to this transaction and (ii) to comply with the provisions of, and no notice to or filing withperform all its obligations under, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.Guarantee;
(d) This Agreement the Guarantor has been, taken all necessary actions to authorise the execution and each delivery of this Guarantee and this Guarantee constitutes the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the Guarantor's legal, valid and binding obligation of each Loan Party party thereto obligations enforceable against such Loan Party the Guarantor in accordance with their respective its terms.;
(e) The Consolidated balance sheet of the entry into and performance by the Guarantor of this Guarantee does not and its Subsidiaries as at December 31will not violate in any respect (i) any law or regulation of any governmental or official authority or body, 2003, and or (ii) the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer constitutional documents of the Guarantor, copies of or (iii) any agreement, contract or other undertaking to which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of is a party or which is binding upon the Guarantor and or its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.assets;
(f) There all consents, licences, approvals and authorisations required in connection with the entry into, performance, validity and enforceability of this Guarantee and the transactions contemplated hereby have been obtained and are in full force and effect;
(g) it is not necessary for the legality, validity, enforceability or admissibility in evidence of this Guarantee that this Guarantee or any document relating hereto be registered, filed, recorded or enrolled with any court or authority in any relevant jurisdiction or that any stamp, registration or similar tax be paid on or in relation to this Guarantee;
(h) no action, suit, proceeding, litigation or dispute against the Guarantor is presently taking place or pending or, to the knowledge of the Guarantorits knowledge, threatened action, suit, investigation, litigation nor is there subsisting any judgement or proceeding, including, without limitation, any Environmental Action, affecting award given against the Guarantor or any of its Subsidiaries before any court, governmental agency arbitral tribunal or arbitrator that other body which, in either case, might have a material adverse effect on the business or condition (financial or otherwise) of the Guarantor or on the ability of the Guarantor to perform any of its obligations under this Guarantee;
(i) could be reasonably likely the Guarantor is not in default under any material agreement to have which it is a Material Adverse Effect party or by which it is bound (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve Systemintra-Group agreements), and no proceeds Event of Default relating to the Guarantor (or event which, with the giving of notice or lapse of time or other applicable condition might constitute an Event of Default relating to the Guarantor) has occurred and is continuing nor will such a default or Event of Default (or such event) result from the performance by the Guarantor of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.its obligations under this Guarantee; and
(hj) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning obligations of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party Guarantor under this Guarantee rank and will rank at least pari passu in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection respects with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true present and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light future unsecured obligations of the circumstances under which such information was providedGuarantor (apart from obligations mandatorily preferred by law).
Appears in 1 contract
Sources: Deed of Guarantee and Indemnity (Central European Media Enterprises LTD)
Representations and Warranties of the Guarantor. Article 8 The Guarantor represents and warrants to the Lenders as follows:
(ai) Each Loan Party It is a corporation an enterprise as legal person duly organized, established and validly existing in accordance with law with an independent legal person status. It has full capacity and in good standing under right to enter into this Contract and perform the laws of the jurisdiction of its organizationobligations hereunder.
(bii) It has been conducting business activities in accordance with law, and has not engaged in any activity beyond its scope of business as registered with the relevant administration of industry and commerce.
(iii) It has carefully read and fully understands and accepts the content of the Facility Agreement and this Contract, and it has voluntarily agreed to execute and perform this Contract and all of its expressions of intent are true.
(iv) It has obtained all approvals from government authorities necessary for it to execute this Contract. The execution, delivery and performance by each Loan Party execution of this Agreement and Contract by the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have Guarantor has been duly authorized by all necessary requisite corporate action, and do not contravene (i) the such Loan Party's charter actions. This Contract is duly executed by its legal representative or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Partyan authorized signatory.
(cv) No authorization or approval or other action by, Its execution of this Contract and no notice to or filing with, any governmental authority or regulatory body or performance of its obligations hereunder do not contravene:
(1) its articles of association;
(2) any other third party is required for the due execution, delivery and performance agreement entered into by the it; or
(3) any Loan Party of this Agreement law or the Notes regulation applicable to be delivered by it.
(dvi) This Agreement has beenContract is legal and valid, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the constitutes legal, valid and legally binding obligation obligations of each Loan Party party thereto enforceable against such Loan Party the Guarantor.
(vii) It is in good financial condition, and has the ability to provide the guarantee for the Guaranteed Debts. Its financial condition has not been materially adversely affected by any arbitration, litigation or administrative proceeding that it is aware of.
(viii) The Guarantor shall provide its audited financial statements to the Lenders every year in a timely manner. The financial statements provided by the Guarantor have been prepared in accordance with their respective terms.
(e) The Consolidated balance sheet the accounting regulations promulgated by the Ministry of Finance, and truly and accurately reflect the financial conditions of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief period stated in such financial officer of the Guarantor, copies of which have statements. There has not been furnished to each Lender, fairly present, subject, any material deterioration in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and since the Consolidated results date of the operations most recent financial statements.
(ix) All documents, materials, statements and certificates provided by it to the Lenders are accurate, true, complete and valid, and those documents provided in the form of duplicate copies are consistent with the original copies.
Article 9 The representations and warranties of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, set forth above shall remain true and accurate in all material respects on at any time during the date as effective term of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time this Contract in light of the facts and circumstances under which such information was providedsubsisting at that time, and the Guarantor warrants that it will provide any further documents from time to time as required by the Lenders.
Appears in 1 contract
Representations and Warranties of the Guarantor. The and the Borrower. Each of the Guarantor and, with 38 respect to itself and its Subsidiaries, the Borrower represents and warrants as follows:
(a) Each Loan Party of the Guarantor and the Borrower is a corporation duly duly, organized, validly existing and in good standing under the laws of the jurisdiction indicated for it in the recital of its organizationparties to this Agreement.
(b) The execution, delivery and performance by each Loan Party of the Guarantor and the Borrower of this Agreement and and, in the case of the Borrower, the Notes to be delivered by it, are each within the Guarantor's and the consummation of the transactions contemplated hereby, are within the such Loan PartyBorrower's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan PartyGuarantor's or the Borrower's charter or by-laws or other organizational documents or (ii) law law, any judgment, order or injunction or any contractual restriction binding on or affecting the Guarantor or the Borrower. The execution, delivery and performance by each of the Guarantor and the Borrower will not result in or require the creation of any Loan PartyLien, claim or other charge or encumbrance upon or with respect to any of the Guarantor's or the Borrower's property or interests in property.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party Guarantor or the Borrower of this Agreement or or, in the case of the Borrower, the Notes to be delivered by it.
(d) This Agreement has beenbeen duly executed and delivered by the Guarantor and the Borrower, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party theretothe Borrower. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower, and this Agreement is the legal, valid and binding obligation of the Guarantor, in each Loan Party party thereto case enforceable against such Loan Party the Borrower and the Guarantor in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization or moratorium or similar laws affecting the rights of creditors generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31February 3, 20032001, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, Arthur Andersen LLP independent public accountants, and the Consolidated ▇▇▇ ▇▇n▇▇▇▇▇▇▇▇d balance sheet of the Guarantor and its Subsidiaries as at March 31May 5, 20042001, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31May 5, 20042001, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31February 3, 20032001, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge best of the Borrower's or the Guarantor's knowledge, threatened action, suit, investigation, litigation action or proceeding, including, without limitation, any Environmental Action, affecting proceeding to which the Guarantor or any of its Subsidiaries is or would be a party before any court, governmental agency agency, or arbitrator arbitrator, that (i) could be reasonably likely to would, if adversely determined, have a Material Adverse Effect (other than Effect. Neither the Disclosed Litigation)Guarantor nor any of its Subsidiaries is in default under any order of any court, and there has been no adverse change in the statusarbitrator or governmental body, or financial effect on under any instrument, document or agreement binding upon the Guarantor Guarantor, any of its Subsidiaries or any of its Subsidiariestheir respective properties, of the Disclosed Litigation from that described on Schedule 3.01(bwhich default (alone or together with all other such defaults) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated herebywould have a Material Adverse Effect.
(g) No Loan Party Neither the Guarantor nor any of its Subsidiaries or ERISA Affiliates has incurred any withdrawal liability under ERISA to any Multiemployer Plan that would have a Material Adverse Effect.
(h) Not more than twenty-five percent (25%) of the value of the assets subject to any "arrangement" (as such term is engaged used in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning section 221.2(g)(1) of Regulation U issued by of the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase ) under this Agreement or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stockNotes is represented by Margin Stock.
(hi) No Loan Party Neither the Borrower nor the Guarantor is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 1 contract
Sources: 364 Day Credit Agreement (May Department Stores Co)
Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants as followsto EBRD that:
(a) Each Loan Party the Guarantor is a corporation duly organized, organised and validly existing and in good standing under the laws of the jurisdiction of its organization.Netherlands;
(b) The execution, delivery the Guarantor is fully familiar with and performance by each Loan Party agrees to all the provisions of the Financing Agreements and the giving of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.Guarantee is for its commercial benefit;
(c) No authorization or approval or the Guarantor has full power and authority (i) to execute and deliver this Guarantee and all notices, certificates and other action bydocuments related to this transaction and (ii) to comply with the provisions of, and no notice to or filing withperform all its obligations under, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.Guarantee;
(d) This Agreement the Guarantor has been, taken all necessary actions to authorise the execution and each delivery of this Guarantee and this Guarantee constitutes the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the Guarantor's legal, valid and binding obligation of each Loan Party party thereto obligations enforceable against such Loan Party the Guarantor in accordance with their respective its terms.;
(e) The Consolidated balance sheet of the entry into and performance by the Guarantor of this Guarantee does not and its Subsidiaries as at December 31will not violate in any respect (i) any law or regulation of any governmental or official authority or body, 2003, and or (ii) the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer constitutional documents of the Guarantor, copies of or (iii) any agreement, contract or other undertaking to which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of is a party or which is binding upon the Guarantor and or its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.assets;
(f) There all consents, licences, approvals and authorisations required in connection with the entry into, performance, validity and enforceability of this Guarantee and the transactions contemplated hereby have been obtained and are in full force and effect;
(g) it is not necessary for the legality, validity, enforceability or admissibility in evidence of this Guarantee that this Guarantee or any document relating hereto be registered, filed, recorded or enrolled with any court or authority in any relevant jurisdiction or that any stamp, registration or similar tax be paid on or in relation to this Guarantee;
(h) no action, suit, proceeding, litigation or dispute against the Guarantor is presently taking place or pending or, to the knowledge of the Guarantorits knowledge, threatened action, suit, investigation, litigation nor is there subsisting any judgement or proceeding, including, without limitation, any Environmental Action, affecting award given against the Guarantor or any of its Subsidiaries before any court, governmental agency arbitral tribunal or arbitrator that other body which, in either case, might have a material adverse effect on the business or condition (financial or otherwise) of the Guarantor or on the ability of the Guarantor to perform any of its obligations under this Guarantee;
(i) could be reasonably likely the Guarantor is not in default under any material agreement to have which it is a Material Adverse Effect party or by which it is bound (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve Systemintra-Group agreements), and no proceeds Event of Default relating to the Guarantor (or event which, with the giving of notice or lapse of time or other applicable condition might constitute an Event of Default relating to the Guarantor) has occurred and is continuing nor will such a default or Event of Default (or such event) result from the performance by the Guarantor of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.its obligations under this Guarantee; and
(hj) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning obligations of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party Guarantor under this Guarantee rank and will rank at least pari passu in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection respects with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true present and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light future unsecured obligations of the circumstances under which such information was providedGuarantor (apart from obligations mandatorily preferred by law).
Appears in 1 contract
Sources: Deed of Guarantee and Indemnity (Central European Media Enterprises LTD)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants to the Secured Party (upon each of which representations and warranties the Secured Party specifically relies) as follows:
(a1) Each Loan Party The Guarantor is a corporation duly organized, validly existing the sole legal and in good standing under beneficial owner and the laws registered holder of the jurisdiction Collateral, free and clear of its organization.
(b) The executionany Adverse Claims and any security interest, delivery and performance by each Loan Party of other than Security Interests under this Agreement and any Security Interests which may arise at law;
(2) The Guarantor has full power and authority and legal right to enter this Agreement and to grant the Notes to be delivered by itlimited recourse guarantee and Security Interests contained herein;
(3) no consent, and the consummation of the transactions contemplated herebyapproval, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws authorization or other organizational documents or (ii) law or order of any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or Person and no consent, authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party Governmental Body is required to be made or obtained by the Guarantor either (a) for the due granting of the Security Interest by the Guarantor in, to or of the Collateral pursuant to this Agreement or for the execution, delivery and or performance of this Agreement by the any Loan Guarantor; or (b) for the exercise by the Secured Party of the voting or other rights provided for in this Agreement or the Notes remedies in respect of the Collateral pursuant to this Agreement, except as may be delivered required in connection with such disposition by it.laws affecting the offering and sale of securities generally or as otherwise has been obtained;
(d4) This all Equity Securities of any Corporation forming part of the Collateral are and will be, until the Maturity Date, validly issued, fully paid and non-assessable;
(5) there is no existing agreement, option, right or privilege capable of becoming an agreement or option pursuant to which the Guarantor would be required to sell or otherwise dispose of any of the Collateral;
(6) the Security Interest granted hereunder will constitute a valid Security Interest in the Collateral upon delivery to the Secured Party of the share certificates representing the Collateral or upon registration of notice thereof in prescribed form under applicable personal property security legislation, if such registration is required in order to perfect a Security Interest in the Collateral, which Security Interest ranks prior to the rights of all other Persons; and
(7) this Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by each Loan Party party thereto. This Agreement is, the Guarantor and each of the Notes when delivered hereunder will be, the constitutes a legal, valid and binding obligation of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective its terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished subject to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation)applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally; and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or fact that specific performance and injunctive relief may be given at the consummation discretion of the transactions contemplated herebycourt.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 1 contract
Sources: Limited Recourse Guarantee, Security and Pledge Agreement (Seven Seas Petroleum Inc)
Representations and Warranties of the Guarantor. The In order to induce the Lender to make the Loan to the Borrower, the Guarantor represents represents, warrants and warrants as followscovenants (and shall be deemed to continuously represent, warrant and covenant during the term of this Guaranty) that:
(a) Each Loan Party the Guarantor is a corporation duly organizedincorporated or established and is in existence, validly existing and in good standing standing, under the laws of the jurisdiction of its organization.organization or creation and the Guarantor has the full capacity, power, authority and legal right to own its property and assets and to transact the business in which it is engaged;
(b) The the Financial Statements are correct and complete and fairly present the financial position of the Guarantor as of the date indicated therein and the results of its operation and the changes in its financial position for the years then ended in accordance with GAAP. Since the date of its last Financial Statements, there has been no change in the financial condition of the Guarantor other than changes in the ordinary course of business and changes arising from the plans of the Guarantor to complete the Project. All financial information relating to the Guarantor which has been delivered to the Lender, is complete and accurate in all material respects in light of the circumstances prevailing at the time of delivery;
(c) the Guarantor has the power to execute, deliver and perform this Guaranty and has taken all necessary corporate action to authorize the execution, delivery and performance by each Loan Party it of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.Guaranty;
(d) This Agreement the Guarantor has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement isthis Guaranty, and each of the Notes when delivered hereunder will be, this Guaranty constitutes the legal, valid and binding obligation of each Loan Party party thereto the Guarantor enforceable against such Loan Party in accordance with their respective its terms.;
(e) The Consolidated balance sheet neither the execution, delivery or performance by the Guarantor of this Guaranty, nor compliance by it with the terms and provisions hereof, will (i) contravene any provision of any applicable law, statute, rule or regulation or any applicable order, writ, injunction or decree of any court or governmental instrumentality; (ii) conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien or encumbrance (other than liens and encumbrances in favour of the Lender) upon any of the property or assets of the Guarantor and pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or any other agreement, contract or instrument to which Guarantor is a party or by which it or any of its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows property or assets is bound or to which it may be subject; or (iii) violate any provision of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer organizational documents of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.;
(f) There is no pending ororder, to the knowledge of the Guarantorconsent, threatened actionapproval, suitlicense, investigationauthorization or validation of, litigation or proceedingfiling, includingrecording or registration with (except as have been obtained or made), without limitationor exemption by, any Environmental Actiongovernmental or public body or authority, affecting the Guarantor or any of its Subsidiaries before any courtsubdivision thereof, governmental agency is required to authorize, or arbitrator that is required for, (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation)execution, delivery and there has been no adverse change in performance of this Guaranty by the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto Guarantor; or (ii) purports to affect the legality, validity validity, binding effect or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.Guaranty;
(g) No Loan Party is engaged the Guarantor’s obligations hereunder rank at least pari passu in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors all respects with all other unsecured and unsubordinated obligations of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.Guarantor;
(h) No Loan Party is an "investment company"there are no actions, suits or a company "controlled" by an "investment company"proceedings pending or threatened (i) with respect to this Guaranty; or (ii) with respect to the Guarantor that could reasonably be expected to materially and adversely affect (A) the business, within the meaning operations, property, assets, liabilities, condition (financial or otherwise) or prospects of the Investment Company Act Guarantor; or (B) the rights or remedies of 1940, as amended.the Lender hereunder or the ability of the Guarantor to perform its obligations to the Lender hereunder;
(i) All factual information (taken as a whole) heretofore there are no facts or contemporaneously furnished by or on behalf circumstances of any Loan Party kind or nature whatsoever of which the Guarantor has knowledge which will impair or prevent the Guarantor from performing its obligations under this Guaranty;
(j) all statements set forth in writing the Recitals are true and correct; and
(k) all of the information supplied by the Guarantor to any the Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein isherewith is true, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true complete and accurate in all material respects on and the date as Guarantor is not aware of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of facts or circumstances that have not been disclosed to the circumstances under Lender and which such might render the information was providedsupplied to the Lender seriously misleading.
Appears in 1 contract
Sources: Loan Agreement (BioAmber Inc.)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as follows:
(a) Each Loan Party The Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.
(b) The execution, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated herebyhereby to be consummated by the Guarantor (i) does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (ii) will not violate (x) any applicable law, regulation or order of any Governmental Authority, except for violations that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change, or (y) any charter, by laws or other organizational documents of the Guarantor, (iii) will not violate or result in a default under any material indenture, agreement or other instrument binding upon any Guarantor or its assets, or give rise to a right thereunder to require any payment to be made by any Guarantor and (iv) is within the such Loan PartyGuarantor's corporate powers, have powers and has been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.
(d) . This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by each Loan Party party thereto. This Agreement is, the Guarantor and each of the Notes when delivered hereunder will be, the constitutes a legal, valid and binding obligation of each Loan Party party thereto the Guarantor, enforceable against such Loan Party in accordance with their respective its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(ec) The Guarantor has heretofore furnished to the Lenders its audited Consolidated balance sheet and statements of earnings, equity and cash flows as of and for the Guarantor and its Subsidiaries as at fiscal year ended December 31, 20032004, reported on by independent public accountants. Such financial statements present fairly, in all material respects, the financial position and the related Consolidated statements results of income operations and cash flows of the Guarantor and its Consolidated Subsidiaries, as of the date thereof and for such fiscal year, in accordance with GAAP.
(d) The Guarantor and each of its Significant Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for defects in title that, individually or in the fiscal year then endedaggregate, accompanied by an opinion would not reasonably be expected to result in a Material Adverse Change.
(e) The Guarantor and each of KPMG LLPits Significant Subsidiaries owns, independent public accountantsor is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the Consolidated balance sheet of use thereof by the Guarantor and each of its Significant Subsidiaries as at March 31does not infringe upon the rights of any other Person, 2004except for any such infringements that, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, individually or in the case of said balance sheet as at March 31aggregate, 2004, and said statements of income and cash flows for the three months then ended, would not reasonably be expected to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all result in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no a Material Adverse Change.
(f) There is are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation against or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that (i) could as to which there would reasonably be expected to be an adverse determination and that, if adversely determined, would reasonably likely be expected, individually or in the aggregate, to have result in a Material Adverse Effect Change (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(bMatters) hereto or (ii) purports to affect the legality, validity or enforceability of that involve this Agreement or any Note or the consummation of the transactions contemplated herebyherein.
(g) No Loan Party is engaged Except for the Disclosed Matters and except with respect to any other matters that, individually or in the business aggregate, would not reasonably be expected to result in a Material Adverse Change, neither the Guarantor nor any of extending credit for the purpose of purchasing its Significant Subsidiaries (i) has failed to comply with any Environmental Law or carrying margin stock to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)ii) has become subject to any Environmental Liability, and no proceeds (iii) has received notice of any Advance will be used claim with respect to purchase any Environmental Liability or carry (iv) knows of any margin stock or to extend credit to others basis for the purpose of purchasing or carrying any margin stockEnvironmental Liability.
(h) The Guarantor and its Significant Subsidiaries are each in compliance with all laws, regulations and orders of any Governmental Authority applicable to them or their respective property and all indentures, agreements and other instruments binding upon them or their respective property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change. No Loan Party Default has occurred and is continuing.
(i) The Guarantor is not an "investment company"" as defined in, or a company "controlled" by an "investment company"subject to regulation under, within the meaning of the Investment Company Act of 1940. The Guarantor is not a "holding company" as defined in, as amendedor subject to regulation under, the Public Utility Holding Company Act of 1935.
(j) The Guarantor and its Subsidiaries have each timely filed or caused to be filed all tax returns and reports required to have been filed and have paid or caused to be paid all taxes, assessments and governmental charges or levies imposed upon them or upon their respective property required to have been paid by it, except (i) All factual all taxes, assessments and governmental charges or levies imposed upon them or upon their respective property that are being contested in good faith by appropriate proceedings and for which Guarantor or any Subsidiary, as applicable, has set aside on its books adequate reserves or (ii) to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Change.
(k) Each Plan and, to the knowledge of the Guarantor, each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law, and no ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Change.
(l) None of the reports, financial statements, certificates or other information (taken as a whole) heretofore or contemporaneously concerning the Guarantor furnished by or on behalf of any Loan Party in writing the Guarantor to the Agent or any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), including the Information Memorandum insofar as information regarding the Guarantor is concerned, contains any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by material misstatement of fact or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit omits to state any material fact necessary to make such information (taken as a whole) not misleading the statements therein, in any material respect at such time in the light of the circumstances under which they were made, not misleading; provided that with respect to projected financial information, the Guarantor represents only that such information was providedprepared in good faith based upon assumptions believed to be reasonable at the time.
(m) None of the Guarantor or any other Subsidiary of the Guarantor is (i) named on the list of Specially Designated Nationals or Blocked Persons maintained by the U.S. Department of the Treasury's Office of Foreign Assets Control available at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/offices/eotffc/ofac/sdn/index.html, or (ii)(A) an agency of the government of a country, (B) an organization controlled by a country, or (C) a Person resident in a country that is subject to a sanctions program identified on the list maintained by the U.S. Department of the Treasury's Office of Foreign Assets Control and available at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/offices/eotffc/ofac/sanctions/index.html, or as otherwise published from time to time, as such program may be applicable to such agency, organization or person, and the proceeds from any Letters of Credit will not be used to fund any operations in, finance any investments or activities in, or make any payments to, any such country, agency, organization or person.
(n) As of the Closing Date, the Beneficiaries and the Account Party are direct or indirect wholly-owned Subsidiaries of the Guarantor.
Appears in 1 contract
Sources: Letter of Credit and Reimbursement Agreement (Metlife Inc)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as followsto each Secured Party that the following statements are true, correct and complete:
(a) Each Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.
(b) The execution, delivery and performance by each Loan Party the Guarantor of this Agreement Amendment and the Notes to be delivered by itGuaranty, and the consummation of the transactions contemplated as amended hereby, are within the such Loan PartyGuarantor's corporate powerspower, have been duly authorized by all necessary corporate action, action and do not contravene (i) contravene the such Loan PartyGuarantor's charter or by-laws or other organizational documents or bylaws (ii) law violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, the effect of which would have a Material Adverse Effect, (iii) conflict with or result in a breach of, or constitute a default under, any contractual restriction contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting the Guarantor, any of its Subsidiaries or any of their respective properties, the effect of which would have a Material Adverse Effect or (iv) except for the Liens created under the Loan PartyDocuments, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of the Guarantor or any of its Subsidiaries.
(cb) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and delivery, recordation, filing or performance by the any Loan Party Guarantor of this Agreement Amendment or the Notes to be delivered by itGuaranty, as amended hereby.
(dc) This Agreement Amendment has been, and each of the Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by each Loan Party party theretothe Guarantor. This Agreement isAmendment and the Guaranty, and each of the Notes when delivered hereunder will beas amended hereby, are the legal, valid and binding obligation obligations of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective terms.
(ed) The Consolidated balance sheet representations and warranties contained in Section 5 of the Guarantor Guaranty are true, correct and its Subsidiaries complete in all material respects as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor date hereof to the same extent as though made on and its Subsidiaries for as of such date, except to the fiscal year then ended, accompanied by extent such representations and warranties specifically related to an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subjectearlier date, in the which case of said balance sheet as at March 31they were true, 2004, correct and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate complete in all material respects on the date and as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was providedearlier date.
Appears in 1 contract
Sources: Credit Agreement (Powertel Inc /De/)
Representations and Warranties of the Guarantor. The To induce the other Parties to enter into this Agreement, the Guarantor hereby reaffirms as to itself and its Subsidiaries, as of the date hereof, its representations and warranties contained in Section 3.01 of the Guaranty (except to the extent such representations and warranties relate solely to an earlier date) and additionally represents and warrants as follows:
(a) Each Loan Party The Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all corporate powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals which the failure to have could not reasonably be expected to have a material adverse effect on the business, assets, condition or operation of the Guarantor and its Subsidiaries taken as a whole. Each Material Subsidiary of the Guarantor is duly organized or validly formed, validly existing and (if applicable) in good standing under the laws of its jurisdiction of incorporation or formation, except where the failure to be so organized, existing and in good standing could not reasonably be expected to have a material adverse effect on the business, assets, condition or operations of the Guarantor and its organizationSubsidiaries taken as a whole. Each Material Subsidiary of the Guarantor has all corporate or limited liability company powers and all governmental licenses, authorizations, certificates, consents and approvals required to carry on its business as now conducted in all material respects, except for those licenses, authorizations, certificates, consents and approvals which the failure to have could not reasonably be expected to have a material adverse effect on the business, assets, condition or operation of the Guarantor and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by each Loan Party the Guarantor of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, by this Agreement are within the such Loan PartyGuarantor's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan PartyGuarantor's charter or by-laws or other organizational documents or (ii) any law or any contractual restriction binding on or affecting the Guarantor and will not result in or require the creation or imposition of any Loan PartyLien.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party Guarantor of this Agreement or the Notes to be delivered consummation of the transactions contemplated by itthis Agreement.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by each Loan Party party theretothe Guarantor. This Agreement is, and each of the Notes when delivered hereunder will be, Guaranty as amended by this Agreement are the legal, valid and binding obligation obligations of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by general principles of equity.
(e) The Consolidated balance sheet Except as set forth in the Public Filings and except for certain class-action lawsuits filed on or after January 29, 2002 alleging fraud and other violations of the Guarantor and its Subsidiaries applicable securities laws, there is, as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of to the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation action or proceeding, including, without limitation, any Environmental Action, proceeding affecting the Guarantor or any material Subsidiary of its Subsidiaries the Guarantor before any court, governmental agency or arbitrator that (i) arbitrator, which could reasonably be reasonably likely expected to have a Material Adverse Effect (other than materially and adversely affect the Disclosed Litigation), and there has been no adverse change in the status, financial condition or financial effect on operations of the Guarantor and its Subsidiaries taken as a whole or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) which purports to affect the legality, validity validity, binding effect or enforceability of this Agreement Agreement, the Guaranty or any Note or other Operative Document. For the consummation purposes of this Section, "Public Filings" shall mean the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit Guarantor's annual report on Form 10-K for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System)year ended December 31, 2000, and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others the Guarantor's quarterly reports on Form 10-Q for the purpose of purchasing or carrying any margin stockquarters ended March 31, 2001, June 30, 2001 and September 30, 2001.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 1 contract
Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants as followsto the Security Trustee that:
(a) Each Loan Party The Guarantor is a corporation duly organized, organized and validly existing and in good standing under the laws of the State of Nevada, is qualified to do business in each jurisdiction of where the failure to be so qualified could have a materially adverse effect on the Guarantor's business, operations or condition (financial or otherwise) or on its organizationability to perform its obligations hereunder, and has the corporate power and authority, and all licenses, rights, permits, certificates, franchises and other privileges, necessary to carry on its business as presently conducted and to perform its obligations under this Agreement.
(b) The execution, delivery and performance by each Loan Party the Guarantor of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have has been duly authorized by all necessary corporate actionaction on the part of the Guarantor, does not require any approval of the shareholders of the Guarantor, and do not neither the execution and delivery hereof nor the consummation of the transactions contemplated hereby nor compliance by the Guarantor with any, nor the Guarantor's performance of all, of the terms and provisions hereof will contravene (i) the such Loan Party's charter or by-laws has contravened any judgment or other order applicable to or binding on it or any applicable law or conflict with, result in any breach of, or constitute any default under, its organizational documents or (ii) law conflict with, result in the creation of a lien under, or require the consent of any trustee or creditor pursuant to, any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, lease, bank loan or credit agreement or other agreement or instrument to which the Guarantor is a party or by which it or any contractual restriction binding on or affecting any Loan Partyof its assets may be bound.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by each Loan Party party thereto. This Agreement isthe Guarantor, and each of the Notes when delivered hereunder will be, constitutes the legal, valid and binding obligation of each Loan Party party thereto the Guarantor, enforceable against such Loan Party the Guarantor in accordance with their respective termsthe terms hereof, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). 24007447915-v4 - 3 - 80-41061491
(d) There are no actions, suits or proceedings pending or, to the best of the Guarantor's knowledge after due inquiry, threatened in any court or before any regulatory commission, board or administrative or other Governmental Authority against or affecting the Guarantor which could have a materially adverse effect on its ability to enter into or perform its obligations under this Agreement or on the condition (financial or otherwise), operations, business or prospects of the Guarantor.
(e) The Consolidated balance sheet Guarantor is in material compliance with all applicable laws in all applicable jurisdictions, the violation of which could have a material adverse effect on the Guarantor and its Subsidiaries as at December 31properties, 2003business, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then endedprospects, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer profits or condition of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There The Guarantor is no pending or, to solvent and will not be rendered insolvent by the knowledge consummation of the Guarantor, threatened action, suit, investigation, litigation or proceedingtransactions contemplated by the Basic Documents, including, without limitation, any Environmental Actionthis Agreement; after such consummation, affecting the capital of the Guarantor will not be unreasonably small for the conduct of the business in which the Guarantor is engaged or is about to engage; the Guarantor has no intention or belief that it is about to incur debts beyond its ability to pay as they mature; and the Guarantor's participation in such transactions is made without any intent to hinder, delay or defraud either present or future creditors of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation)Guarantor, and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation none of the transactions contemplated herebyby the Basic Documents to which the Guarantor is a party is void or voidable at the behest of any creditor of the Guarantor.
(g) No Loan Party is engaged The financial statements of the Guarantor for the fiscal year ending December 31, 2022 and the fiscal quarter ending June 30, 2023 (i) were prepared in accordance with GAAP consistently applied (except as may be indicated in the business notes thereto or as permitted by Form 10-Q in the case of extending credit interim unaudited consolidated financial statements) and (ii) fairly represent in all material respects the consolidated financial condition and operations of the Guarantor as at the respective dates thereof and the consolidated results of its operations and cash flows for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stockperiods indicated therein.
(h) No Loan Party is an "investment company"Since December 31, 2022, there has been no material adverse change in the financial condition or a company "controlled" by an "investment company", within the meaning prospects of the Investment Company Act of 1940, as amendedGuarantor.
(i) All factual information Both the Borrower and the Lessee are wholly-owned consolidated Subsidiaries of the Guarantor.
(taken j) It is in the best interests of the Guarantor to execute this Guaranty, inasmuch as a whole) heretofore or contemporaneously furnished the Guarantor will derive substantial direct and indirect benefits from the Loans made by or the Lenders and the Guarantor agrees that the Lenders are relying on behalf of any Loan Party this representation in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary agreeing to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was providedLoans.
Appears in 1 contract
Representations and Warranties of the Guarantor. The Guarantor represents hereby represents, warrants and warrants acknowledges to the Sellers as followsof the date hereof and as of the Closing Date (except for such representations which are expressly made as of the Put Option Date or as of the Closing Date and are therefore made on such date only) as set forth below:
(a) Each Loan Party The Guarantor is a corporation duly organized, incorporated and validly existing and in good standing under the laws of Florida, is not in a state of insolvency (en état de cessation des paiements), nor subject to any Insolvency Proceedings. The Guarantor has the jurisdiction of corporate capacity and right to enter into this Agreement, to perform its organizationobligations hereunder and to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance by each Loan Party entering into of this Agreement and the Notes to be delivered by it, and the consummation performance of the transactions contemplated hereby, are within the such Loan Party's corporate powers, Guarantor’s obligations hereunder have been duly authorized by all necessary corporate action, action and do not contravene (i) proceedings on the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for part of the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.
(d) Guarantor. This Agreement has been, been duly signed by the Guarantor and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the constitutes a legal, valid and binding obligation of each Loan Party party thereto the Guarantor, enforceable against such Loan Party it in accordance with their respective its terms.
(ec) The Consolidated balance sheet Neither the entering into of this Agreement, nor the performance by the Guarantor of its obligations hereunder, nor the consummation of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows transactions provided for hereby does or will:
(i) conflict with or violate any provision of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer Organizational Documents of the Guarantor;
(ii) violate, copies of which have been furnished to each Lender, fairly present, subject, conflict with or result in the case breach or termination of, or constitute a default or event of said balance sheet as at March 31default (or an event which with notice, 2004lapse of time, and said statements or both, would constitute a default or event of income and cash flows for default), under the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitationterms of, any Environmental Action, affecting material Contract or Governmental Authorization to which the Guarantor or any of its Subsidiaries before any court, governmental agency Affiliates is a party or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on by which the Guarantor or any of its SubsidiariesAffiliates is bound in a manner that would prevent the Guarantor to perform its obligations under this Agreement; or
(iii) subject to obtaining the Required Clearances, constitute a violation by the Guarantor or any of its Affiliates of any Laws or Judgments.
(d) Other than the Disclosed Litigation from that described on Schedule 3.01(bRequired Clearances, no Governmental Authorization or other third party consent is required to be made or obtained by the Guarantor or any of its Affiliates prior to the Closing in connection with (a) hereto or (ii) purports to affect the legality, validity or enforceability entering into of this Agreement by the Guarantor, (b) the performance by the Guarantor of its obligations hereunder, or any Note or (c) the consummation of any of the transactions contemplated herebyby this Agreement.
(ge) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors Each of the Federal Reserve System)Guarantor, its directors, officers, and no proceeds other individuals having primary management or supervisory responsibilities of any Advance will be used to purchase the Guarantor, (a) is a U.S. citizen or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
company and (hb) No Loan Party is an not, and is not controlled by, a "investment company", foreign person" or a company "controlledforeign entity" by an "investment company", within the meaning of the Investment Company Act of 1940, as amendedsuch terms are respectively defined in 31 C.F.R. § 800.224 and 31 C.F.R. § 800.220.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 1 contract
Sources: Put Option Agreement (Heico Corp)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants to the Secured Party (upon each of which representations and warranties the Secured Party specifically relies) as follows:
(a1) Each Loan Party The Guarantor is a corporation duly organized, validly existing the sole legal and in good standing under beneficial owner and the laws registered holder of the jurisdiction Collateral, free and clear of its organization.
(b) The executionany Adverse Claims and any security interest, delivery and performance by each Loan Party of other than Security Interests under this Agreement and any Security Interests which may arise at law;
(2) The Guarantor has full power and authority and legal right to enter this Agreement and to grant the Notes to be delivered by itlimited recourse guarantee and Security Interests contained herein;
(3) no consent, and the consummation of the transactions contemplated herebyapproval, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws authorization or other organizational documents or (ii) law or order of any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or Person and no consent, authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party Governmental Body is required to be made or obtained by the Guarantor either (a) for the due granting of the Security Interest by the Guarantor in, to or of the Collateral pursuant to this Agreement or for the execution, delivery and or performance of this Agreement by the any Loan Guarantor; or (b) for the exercise by the Secured Party of the voting or other rights provided for in this Agreement or the Notes remedies in respect of the Collateral pursuant to this Agreement, except as may be delivered required in connection with such disposition by it.laws affecting the offering and sale of securities generally or as otherwise has been obtained;
(d4) This all Equity Securities of any Corporation forming part of the Collateral are and will be, until the Maturity Date, validly issued, fully paid and non-assessable;
(5) there is no existing agreement, option, right or privilege capable of becoming an agreement or option pursuant to which the Guarantor would be required to sell or otherwise dispose of any of the Collateral;
(6) the Security Interest granted hereunder will constitute a valid Security Interest in the Collateral upon delivery to the Secured Party of the share certificates representing the Collateral or upon registration of notice thereof in prescribed form under applicable personal property security legislation, if such registration is required in order to perfect a Security Interest in the Collateral, which Security Interest ranks prior to the rights of all other Persons; and
(7) this Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, been duly executed and delivered by each Loan Party party thereto. This Agreement is, the Guarantor and each of the Notes when delivered hereunder will be, the constitutes a legal, valid and binding obligation of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective its terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished subject to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation)applicable bankruptcy, and there has been no adverse change in the statusinsolvency, moratorium or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.similar laws affecting creditors' rights
Appears in 1 contract
Sources: Limited Recourse Guarantee, Security and Pledge Agreement (Seven Seas Petroleum Inc)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as followsto the Bank that:
(a) Each Loan Party it is duly incorporated and validly existing as a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of Delaware, United States of America, and it has power to carry on its organization.business as it is now being conducted and to own its property and other assets;
(b) The it has the power to execute and deliver, and perform its obligations under, this Deed of Guarantee and Indemnity and all necessary corporate, shareholder and other action has been taken to authorise the execution, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered same by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.;
(c) No authorization or approval or other action by, the board of directors of the Guarantor is satisfied that the Guarantor is entering into this Deed of Guarantee and no notice to or filing with, any governmental authority or regulatory body or any other third party is required Indemnity for the due execution, delivery purposes of its business and performance by that its doing so benefits the any Loan Party of this Agreement or the Notes to be delivered by it.Guarantor;
(d) This Agreement has beenthis Deed of Guarantee and Indemnity constitutes its legally valid, binding and each enforceable obligations subject to any qualifications set out in the legal opinions provided to the Bank pursuant to Article 1.04 of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.Finance Contract;
(e) The Consolidated balance sheet the execution and delivery of, the performance of its obligations under and compliance with the provisions of, this Deed of Guarantee and Indemnity do not and will not:
(i) contravene or conflict with any applicable law, statute, rule or regulation, or any judgement, decree or permit to which it is subject;
(ii) contravene or conflict with any agreement or other instrument binding upon it which might reasonably be expected to have a material adverse effect on its ability to perform its obligations under this Deed of Guarantee and Indemnity; and
(iii) contravene or conflict with any provision of its constitutional documents;
(f) the latest available consolidated audited financial statements of the Guarantor have been prepared in accordance with Applicable Accounting Standards and have been approved by its Subsidiaries auditors as at December 31, 2003, representing a true and the related Consolidated statements of income and cash flows fair view of the Guarantor results of its operations for that year and its Subsidiaries for accurately disclose or reserve, to the fiscal year then endedextent required in accordance with Applicable Accounting Standards, accompanied by an opinion of KPMG LLP, independent public accountants, and against all the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer liabilities (actual or contingent) of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, ;
(g) there has been no Material Adverse Change.Change since 18 November 2014;
(fh) There is no pending or, to the knowledge event or circumstance which constitutes an event of default under Article 10.01 of the GuarantorFinance Contract has occurred and is continuing unremedied or unwaived;
(i) no litigation, arbitration, administrative proceedings or investigation is current or to its knowledge is threatened actionor pending before any court, suitarbitral body or agency which has resulted or if adversely determined is reasonably likely to result in a Material Adverse Change, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor nor is there subsisting against it or any of its Subsidiaries before any court, governmental agency unsatisfied judgement or arbitrator that (i) could be award which has resulted or is reasonably likely to have result in a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.Change;
(gj) No Loan Party is engaged in the business it has obtained all necessary consents, authorisations, licences or approvals of extending credit for the purpose of purchasing governmental or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase public bodies or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or authorities in connection with this Agreement or any transaction contemplated herein isDeed of Guarantee and Indemnity, and in order to lawfully comply with its obligations hereunder, and all such consents, authorisations, licences or approvals are in full force and effect and admissible in evidence;
(k) the Borrower, the Guarantor and any Subsidiary are in compliance with Article 6.01 of this Deed of Guarantee and Indemnity;
(l) it is in compliance with Article 5.05(e) of this Deed of Guarantee and Indemnity and to the best of its knowledge and belief (having made due and careful enquiry) no material Environmental Claim has been commenced or is threatened against it or any member of the Group in relation to the Project;
(m) it will not be required to make any deduction or withholding from any payment it may make under this Deed of Guarantee and Indemnity;
(n) under the laws of its jurisdiction of incorporation, the claims of the Bank against it under this Deed of Guarantee and Indemnity will rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred by reason of any bankruptcy, insolvency, liquidation or other similar laws of general application;
(o) under the laws of its jurisdiction of incorporation, it is not necessary that this Deed of Guarantee and Indemnity be filed, recorded or enrolled with any court or other authority in such factual information jurisdiction (save for a filing with the U.S. Securities and Exchange Commission, which shall be made by the Guarantor after the execution and delivery of this Deed of Guarantee and Indemnity) or that any stamp, registration or similar tax be paid on or in relation to this Deed of Guarantee and Indemnity;
(p) it has not taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against it for its winding-up, dissolution, administration or reorganisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of a material part of its assets or revenues;
(q) in any proceedings taken in its jurisdiction of incorporation in relation to this Deed of Guarantee and Indemnity, the choice of English law as a whole) hereafter furnished by or on behalf the governing law of such Loan Party this Deed of Guarantee and Indemnity, the submission to the courts of England and any judgment obtained in writing England will be recognised and enforced, in each case subject to any Lender will be, true and accurate qualifications set out in all material respects on the date as of which such information is dated or certified and does not or will not omit legal opinions provided to state any fact necessary the Bank pursuant to make such information (taken as a whole) not misleading in any material respect at such time in light Article 1.04 of the circumstances Finance Contract; and
(r) it has obtained all consents, authorisations, licences or approvals of governmental or public bodies or authorities in connection with its business activities, except where the failure to have such consents, authorisations, licences or approvals could not reasonably be expected to result in a Material Adverse Change, and all such consents, authorisations, licences or approvals are in full force and effect and admissible in evidence. The representations and warranties set out above shall survive the execution of this Deed of Guarantee and Indemnity and are deemed repeated on each Disbursement Request, Disbursement Date and on each Payment Date under which such information was providedthe Finance Contract.
Appears in 1 contract
Sources: Finance Contract (Agco Corp /De)
Representations and Warranties of the Guarantor. The As of the date hereof, the Guarantor represents and warrants as followsthat:
(a) Each Loan Party the Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization. The Guarantor is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions which require such qualification, except to the extent that failure to so qualify would not have a material adverse effect on the business, financial condition or operations of the Borrower and its organization.Subsidiaries, taken as a whole;
(b) The the execution, delivery and performance by each Loan Party the Guarantor of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, Guaranty are within the such Loan Party's Guarantor’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter Guarantor’s certificate of incorporation or by-laws or other organizational documents bylaws or (ii) law or any material contractual restriction binding on or affecting any Loan Party.the Guarantor;
(c) No no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party Guarantor of this Agreement or Guaranty except for those which have been obtained prior to the Notes to be delivered by it.date hereof and remain in full force and effect;
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, this Guaranty is a valid and binding obligation of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective its terms., subject to the effect of applicable bankruptcy, insolvency, arrangement, moratorium and other similar laws affecting creditors’ rights generally, concepts of reasonableness and to the application of general principles of equity;
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries is not required to register as at December 31an investment company under the Investment Company Act of 1940, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.amended;
(f) There there is no pending or, or (to the knowledge of the Guarantor, ) threatened action, suit, investigation, litigation action or proceeding, including, without limitation, any Environmental Action, affecting proceeding against the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that which (i) could except as disclosed in the Exchange Act Reports filed prior to the date hereof, would, if adversely determined, reasonably be reasonably likely expected to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no material adverse change in the status, or financial effect on the Guarantor business, financial condition or any operations of the Borrower and its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto taken as a whole, or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.Guaranty;
(g) No Loan Party is engaged except as disclosed in the business Exchange Act Reports filed prior to the date hereof, the Guarantor and each of extending credit its Significant Subsidiaries have filed or caused to be filed all Tax returns (federal, state, local and foreign) required to be filed and paid all amounts of Taxes shown thereon to be due, including interest and penalties, except (i) for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued such Taxes as are being contested in good faith and by proper proceedings and with respect to which appropriate reserves are being maintained by the Board of Governors Guarantor or any such Subsidiary, as the case may be and (ii) to the extent that the failure to file such returns or pay such Taxes would not reasonably be expected to have a material adverse effect on the business, financial condition or operations of the Federal Reserve System)Borrower and the Subsidiaries, and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.taken as a whole;
(h) No Loan Party except as disclosed in the Exchange Act Reports filed prior to the date hereof:
(i) no ERISA Event has occurred or is an "investment company"reasonably expected to occur (other than for premiums payable under Title IV of ERISA), that would reasonably be expected to result in a liability to the Guarantor or its Subsidiaries of more than US$250,000,000 over the amount previously reflected for any such liabilities, in accordance with GAAP, on the financial statements included in the Exchange Act Reports;
(j) Schedule B (Actuarial Information) to the most recently completed annual report (Form 5500 Series) for each Pension Plan, copies of which have been filed with the IRS and furnished to the Administrative Agent, is complete and, to the best knowledge of the Guarantor, accurate, and since the date of such Schedule B there has been no change in the funding status of any such Pension Plan except any change that would not reasonably be expected to have a material adverse effect on the business, financial condition or operations of the Borrower and the Subsidiaries, taken as a whole;
(k) as of the most recent valuation date for each Multiemployer Plan for which the actuarial report is available, the potential liability to the Guarantor or any of its Subsidiaries for a complete withdrawal from such Multiemployer Plan, when aggregated with such potential liability for a complete withdrawal for all Multiemployer Plans, based on information available pursuant to Section 4221(e) of ERISA, does not exceed US$250,000,000;
(l) the Guarantor and each of its Subsidiaries are in compliance with all applicable provisions and requirements of ERISA and the regulations and published interpretations thereunder with respect to each Employee Benefit Plan, and have performed all their obligations under each Employee Benefit Plan except for any such failure to perform or comply that would not reasonably be expected to have a material adverse effect on the business, financial condition or operations of the Borrower and its Subsidiaries, taken as a whole;
(m) each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code has received a determination letter from the IRS that the Employee Benefit Plan is so qualified (or a company "controlled" timely application for such a determination letter is pending), and to the best of the Guarantor’s knowledge, the Employee Benefit Plan has not been operated in any way that would result in the Employee Benefit Plan no longer being so qualified except as would not reasonably be expected to have a material adverse effect on the business, financial condition or operations of the Borrower and its Subsidiaries, taken as a whole; and
(n) neither the Guarantor nor any of its Subsidiaries has been notified by an "investment company"the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent, in reorganization or has been terminated or has been determined to be in “endangered” or “critical” status, within the meaning of Title IV of ERISA, and, to the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light best knowledge of the circumstances under which such information was provided.Guarantor, no Multiemployer Plan is reasonably expected to be insolvent, in reorganization or to be terminated or to be determined to be in “endangered” or “critical” status within the meaning of Title IV of ERISA, in each case, resulting in a liability to the Guarantor or its Subsidiaries of more than US$250,000,000;
Appears in 1 contract
Sources: Term Loan Credit Agreement (Hewlett Packard Enterprise Co)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants to each Holder that as followsof the date such person becomes a Guarantor hereunder:
(a) Each Loan Party The Guarantor is a corporation real estate investment trust duly organized and existing in good standing under the laws of the State of North Dakota and has the trust power to own its property and assets and to conduct its business in the matter and in the places in which it is now being and is presently proposed to be conducted and to perform its obligations under this Guaranty, the Note Agreement and any other Transaction Document to which it is a party. The Guarantor is a real estate investment trust duly organized, validly existing and in good standing under the laws of the its jurisdiction of its organization, and is duly qualified as a foreign corporation or other legal entity and is in good standing in each jurisdiction in which such qualification is required by law. The Guarantor has the power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Guaranty and to perform the provisions hereof.
(b) [intentionally omitted]
(c) This Guaranty has been duly authorized by all necessary action on the part of the Guarantor, and this Guaranty constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(d) The execution, delivery and performance by each Loan Party the Guarantor of this Agreement and Guaranty will not (1) contravene, result in any breach of, or constitute a default under, or result in the Notes to be delivered by it, and the consummation creation of any Lien in respect of any property of the transactions contemplated herebyGuarantor under any indenture, are within mortgage, deed of trust, loan, purchase or credit agreement, lease, organizational document or any other agreement or instrument to which the such Loan Party's corporate powersGuarantor is bound or by which the Guarantor or any of its properties may be bound or affected, have been duly authorized by all necessary corporate action(2) conflict with or result in a breach of any of the terms, and do not contravene conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or governmental authority applicable to the Guarantor, or (i3) the such Loan Party's charter or by-laws violate any provision of any statute or other organizational documents rule or (ii) law or regulation of any contractual restriction binding on or affecting any Loan Partygovernmental authority applicable to the Guarantor.
(ce) No authorization or consent, approval or other action byauthorization of, and no notice to or registration, filing or declaration with, any governmental authority or regulatory body or any other third party is required for in connection with the due execution, delivery and or performance by the any Loan Party Guarantor of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse ChangeGuaranty.
(f) There is are no actions, suits or proceedings pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation against or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any property of its Subsidiaries the Guarantor in any court or before any courtarbitrator of any kind or before or by any governmental authority that, governmental agency individually or arbitrator that (i) in the aggregate, could be reasonably likely expected to have result in a Material Adverse Effect (other than the Disclosed Litigation), and there has been no material adverse change in the statusbusiness, prospects, property or assets, condition (financial effect on the Guarantor or any of its Subsidiaries, otherwise) or operations of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated herebyGuarantor.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 1 contract
Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants as followsthat:
(a) Each Loan Party it is a corporation duly organized, organized and validly existing and in good standing under the laws Laws of the jurisdiction of its organization.;
(b) The the execution, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, Limited Guarantee have been duly authorized by all necessary all necessary limited partnership or corporate action, and do not contravene action (ias applicable) on the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.part of the Guarantor;
(c) No authorization all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or approval or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for in connection with the due execution, delivery and or performance by the any Loan Party of this Agreement Limited Guarantee except in any such case where failure to obtain or make any of the Notes foregoing would not, individually or in aggregate, have a material adverse effect on the ability of the Guarantor to be delivered by it.satisfy the Guaranteed Obligations hereunder;
(d) This Agreement has been, assuming due execution and each delivery of the Notes to be delivered Merger Agreement and this Limited Guarantee by it when delivered hereunder will have beenthe Guaranteed Party, this Limited Guarantee has been duly and validly executed and delivered by each Loan Party party thereto. This Agreement is, the Guarantor and each of the Notes when delivered hereunder will be, the constitutes a legal, valid and binding obligation of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective its terms., except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or moratorium Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies; and
(e) The Consolidated balance sheet of the Guarantor has the financial capacity to pay and perform its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Changeobligations under this Limited Guarantee.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 1 contract
Sources: Limited Guarantee (Junique Laurent)
Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants as followsthat:
(a) Each Loan Party the Guarantor is a corporation limited company duly organized, organized and validly existing and in good standing (to the extent such concept is recognized) under the laws Laws of the its jurisdiction of organization and has all the necessary power and authority to execute, deliver and perform its organization.obligations under this Guarantee in accordance with the terms hereof;
(b) The the execution, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, Guarantee have been duly authorized by all necessary corporate action, and do not conflict with or contravene (i) any provision of the such Loan Party's charter or by-laws or other Guarantor’s organizational documents or (ii) law any applicable Law, regulation, rule, decree, order, judgment or any contractual restriction binding on the Guarantor or affecting any Loan Partyits assets.
(c) No authorization all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Guarantee by the Guarantor have been obtained or approval or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party Governmental Authority is required for in connection with the due execution, delivery and or performance by the any Loan Party of this Agreement or the Notes to be delivered by it.Guarantee;
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the this Guarantee constitutes a legal, valid and binding obligation of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective its terms., subject to, but without limiting the effect of clause (e) of the second sentence of Section 3, (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar applicable Laws affecting creditors’ rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at applicable Law);
(e) The Consolidated balance sheet of the Guarantor has the financial capacity to pay and perform its Subsidiaries as at December 31, 2003obligations under this Guarantee, and the related Consolidated statements of income and cash flows of all funds necessary for the Guarantor and to fulfill its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of obligations under this Guarantee shall be available to the Guarantor and (or its Subsidiaries permitted assignee pursuant to Section 6 hereof) for so long as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, this Guarantee shall remain in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all effect in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.Section 8 hereof; and
Appears in 1 contract
Sources: Guarantee (Cit Group Inc)
Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants as followsthat:
(a) Each Loan Party it is a corporation duly organized, validly existing and in good standing under the laws Laws of the jurisdiction of its organization.organization and has all requisite power and authority to execute, deliver and perform this Limited Guarantee;
(b) The the execution, delivery and performance by each Loan Party of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, Limited Guarantee have been duly authorized by all necessary all necessary limited partnership or corporate action, and do not contravene action (ias applicable) on the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.part of the Guarantor;
(c) No authorization all consents, approvals, authorizations and permits of, filings with and notifications to, any Governmental Entity necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or approval or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party Governmental Entity is required for from the due Guarantor in connection with the execution, delivery and or performance by the any Loan Party of this Agreement or the Notes to be delivered by it.Limited Guarantee;
(d) This Agreement has been, assuming due execution and each delivery of the Notes to be delivered Merger Agreement and this Limited Guarantee by it when delivered hereunder will have beenthe Guaranteed Party, this Limited Guarantee has been duly and validly executed and delivered by each Loan Party party thereto. This Agreement is, the Guarantor and each of the Notes when delivered hereunder will be, the constitutes a legal, valid and binding obligation of each Loan Party party thereto the Guarantor enforceable against such Loan Party the Guarantor in accordance with their respective its terms.
(e) The Consolidated balance sheet , except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or moratorium Laws, other similar Laws affecting creditors’ rights and general principles of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, equity affecting the Guarantor or any availability of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (specific performance and other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.equitable remedies; and
(i) All factual information (taken the Guarantor is solvent and shall not be rendered insolvent as a wholeresult of its execution and delivery of this Limited Guarantee or the performance of its obligations hereunder, (ii) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing the Guarantor has the financial capacity to any Lender (including, without limitation, all information contained in pay and perform its obligations under this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein isLimited Guarantee, and (iii) all other such factual information (taken funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as a whole) hereafter furnished by or on behalf of such Loan Party this Limited Guarantee shall remain in writing to any Lender will be, true and accurate effect in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was providedaccordance with Section 6 hereof.
Appears in 1 contract
Sources: Limited Guarantee (Ma Baoli)
Representations and Warranties of the Guarantor. The Each Guarantor represents and warrants as followsthat:
(a) Each Loan Party is He has a corporation duly organized, validly existing financial interest in the Borrower and the assumption of his obligations and liabilities hereunder will result in good standing under the laws of the jurisdiction of its organization.substantial financial benefits to him;
(b) The execution, delivery and performance by each Loan Party of this Agreement He has read or has had an opportunity to read all documents referred to herein or otherwise relating to the Note and the Notes to be delivered by itLoan Documents, and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, this Guaranty Agreement is his binding obligation and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.is fully enforceable against him in accordance with its terms;
(c) No authorization There are (i) no provisions of any existing mortgage, indenture, contract or approval agreement binding on him or affecting his property (other action bythan any such agreements with the Lender), and (ii) to his knowledge no notice to provision of law or filing withorder of court or of any administrative officer or administrative agency, binding upon him or his property, either of which would conflict with or in any governmental authority or regulatory body or any other third party is required for way prevent the due execution, delivery and or performance by of the any Loan Party terms of this Guaranty Agreement or the Notes to which would be delivered by it.in default or breached as a result of such execution, delivery or performance;
(d) This Agreement has beenTo the Guarantor's knowledge, his most recent financial statement heretofore delivered to the Lender is true and each correct as of the Notes date thereof; except as disclosed to be delivered the Lender, all assets listed thereon are held by it when delivered hereunder will have been, duly executed the Guarantor personally and delivered by each Loan Party party thereto. This Agreement not in joint ownership (that is, subject to a right of survivorship) with any person (other than his spouse); to the Guarantor's knowledge there has been no material adverse change in his financial position since the date of such financial statement and each of no such material adverse change is pending or threatened, except as otherwise disclosed to the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.Lender;
(e) The Consolidated balance sheet of To the Guarantor's knowledge, there are no proceedings pending, or so far as the Guarantor and its Subsidiaries as at December 31knows, 2003threatened, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief before any court or administrative agency or officer which will adversely affect his financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.position; and
(f) There is no pending orTo the Guarantor's knowledge, to the knowledge all of the Guarantor's representations and those of the Borrower, threatened actionPartnership Guarantor and Corporate Guarantor under that certain Corporate Guaranty Agreement dated of even date herewith (the "Corporate Guaranty") made in obtaining the Loan, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Working Capital Loan and the Letter of Credit Facility from the Lender are true and correct and not knowingly misleading and the Guarantor agrees to indemnify the Lender from any loss or any expense as a result of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, breach of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated herebyforegoing warranty.
(g) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided.
Appears in 1 contract
Sources: Personal Guaranty Agreement (Interstate General Co L P)
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as followsto each Holder that:
(a) Each Loan Party The Guarantor is a corporation limited liability company duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization, and is duly qualified as a foreign limited liability company and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on (1) the business, operations, affairs, financial condition, assets or properties of the Guarantor and its organizationsubsidiaries, taken as a whole, or (2) the ability of the Guarantor to perform its obligations under this Guaranty or (3) the validity or enforceability of this Guaranty (herein in this Section 5, a “Material Adverse Effect”). The Guarantor has the limited liability company power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Guaranty and to perform the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary action on the part of the Guarantor, and this Guaranty constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except as such enforceability may be limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (2) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance by each Loan Party the Guarantor of this Agreement and the Notes to be delivered by itGuaranty will not (1) contravene, and the consummation of the transactions contemplated herebyresult in any breach of, are within the such Loan Party's corporate powersor constitute a default under, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, result in the case creation of said balance sheet as at March 31, 2004, and said statements any lien in respect of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition any material property of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before subsidiaries under any courtmaterial indenture, governmental agency mortgage, deed of trust, loan, purchase or arbitrator that (i) could be reasonably likely credit agreement, lease, organizational document or any other agreement or instrument to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on which the Guarantor or any of its Subsidiariessubsidiaries is bound or by which the Guarantor or any of its subsidiaries or any of their respective material properties may be bound or affected, (2) conflict with or result in a breach of any of the Disclosed Litigation from that described on Schedule 3.01(b) hereto terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or governmental authority applicable to the Guarantor or any of its subsidiaries or (ii3) purports violate any provision of any statute or other rule or regulation of any governmental authority applicable to affect the legality, validity or enforceability of this Agreement Guarantor or any Note or the consummation of the transactions contemplated herebyits subsidiaries.
(gd) No Loan Party consent, approval or authorization of, or registration, filing or declaration with, any governmental authority is engaged required in connection with the business of extending credit for the purpose of purchasing execution, delivery or carrying margin stock (within the meaning of Regulation U issued performance by the Board Guarantor of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stockthis Guaranty.
(he) No Loan Party Neither the Guarantor nor any of its subsidiaries is an "investment company", or a company "controlled" by an "investment company", within the meaning of the subject to regulation under Investment Company Act of 1940, as amended.
(i) All factual information (taken , the Public Utility Holding Company Act of 2005, as amended, the ICC Termination Act of 1995, as amended, the Federal Power Act, as amended. Neither the Guarantor nor any of its subsidiaries is subject to regulation under federal or state law as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing public utility except that the Company is subject to any Lender (including, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken regulation as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light public utility under Chapter 269 of the circumstances under which such information was providedHawaii Revised Statutes.
Appears in 1 contract
Sources: Note Purchase Agreement (Macquarie Infrastructure CO LLC)
Representations and Warranties of the Guarantor. 3.1 The Guarantor represents and warrants to the Administrative Agent on the date hereof, as followsof the date of each Loan (other than a Loan resulting from a PIK Amount) and as of the date of each transfer of Margin Share Collateral under the Credit Documents that:
(a) Each Loan Party it (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization., (ii) has all requisite corporate power and authority to execute and deliver this Guaranty and to perform the provisions of this Guaranty on its part to be performed 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 where the failure to be so qualified or in good standing could not reasonably be expected to have a Guarantor Material Adverse Effect;
(b) The the execution, delivery and performance of this Guaranty have been duly authorized by all necessary action on the part of the Guarantor;
(c) the execution, delivery and performance by each Loan Party the Guarantor of this Agreement and the Notes to be delivered by it, Guaranty and the consummation of the transactions contemplated hereby, are within the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and hereby do not contravene and will not (a) violate (i) any provision of any law or any governmental rule or regulation applicable to the such Loan Party's charter Guarantor (including any anti-fraud or by-laws or other organizational documents or reporting provisions of the Exchange Act), (ii) law any of the Organizational Documents of the Guarantor, (iii) any trading policy of the Issuer applicable to the Guarantor or any contractual restriction Affiliate of the Guarantor, including the Issuer’s window period policy or (iv) any order, judgment or decree of any court of competent jurisdiction or other agency of government binding on the Guarantor or affecting any Loan Party.
of its assets; (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any agreement or instrument to which the Guarantor is a party or by which the Guarantor or any of its assets is bound; (c) No authorization result in or require the creation or imposition of any Lien upon any of the assets of the Guarantor; or (d) require any approval of stockholders, members or partners or any approval or other action byconsent of any Person under any contractual obligation of the Guarantor, except for such approvals or consents which will be obtained on or before the Closing Date and no notice disclosed in writing to or filing with, any governmental authority or regulatory body or any other third party is required for the due Lenders;
(d) the execution, delivery and performance by the any Loan Party Guarantor of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, Guaranty and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the status, or financial effect on the Guarantor or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.by this Guaranty do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any Governmental Authority;
(e) this Guaranty has been duly executed and delivered by the Guarantor and is the legally valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(f) there are no Adverse Proceedings with respect to the Guarantor that could reasonably be expected to have a Guarantor Material Adverse Effect; the Guarantor is not (i) in violation of any applicable laws or (ii) subject to or in default with respect to any judgments, writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, in each case that could reasonably be expected to have a Guarantor Material Adverse Effect;
(g) No Loan Party it is engaged not aware of, and is not entering into this Guaranty or the transactions contemplated hereby on the basis of, any material Non-public Information in respect of the Issuer, the Common Units, the Guarantor or the Parent Shares; provided that to the extent the representation and warranty in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors immediately preceding sentence is made as of the Federal Reserve System)date of this Guaranty, such representation and warranty will not be deemed to refer to (i) the Borrower and the Guarantor’s entry into the Credit Documents or (ii) the intended use of proceeds of the initial Loan made under the Credit Documents, in each case, solely to the extent that: (x) such information has been disclosed to Citibank prior to the date of this Guaranty, (y) such information will be publicly disclosed by Borrower and Parent within one Business Day of the date of this Guaranty through a filing with the SEC that is available on the ▇▇▇▇▇ system, a press release and/or by making such information available on the Guarantor’s website and (z) the Borrower and the Guarantor have complied, and no proceeds will comply, with their respective reporting obligations with respect to such information under Sections 13 and 16, as applicable, of the Exchange Act and applicable securities laws of any Advance will other jurisdiction, including any required filings with the SEC; provided further that this representation shall only be used deemed to purchase or carry any margin stock or to extend credit to others for be made on the purpose date of purchasing or carrying any margin stock.this Guaranty, the date the initial Loan is made under the Credit Agreement and as provided in Section 2.9(c)(iv) of the Credit Agreement;
(h) No Loan Party all reports and other documents filed by it with the SEC pursuant to the Exchange Act since (and including) its most recent annual report on Form 10-K, when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading;
(i) it is not, and after giving effect to the transactions contemplated hereby and under the other Credit Documents will not be, required to register as, an "“investment company", or a company "controlled" by an "investment company", within the meaning of ” as such term is defined in the Investment Company Act of 1940, and shall conduct its affairs in such a manner so as amended.to ensure that it will not be required to register as an “investment company” as such term is defined in the Investment Company Act;
(ij) All factual information each of the respective representations and warranties made by Borrower under the Credit Documents as of such date is true and correct; and
(taken k) as a whole) heretofore or contemporaneously furnished by or on behalf of any Loan Party in writing to any Lender (includingsuch date, without limitation, all information contained in this Agreement) for purposes of or in connection with this Agreement or any transaction contemplated herein isthe Guarantor is the sole owner of, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing has good title to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light 100% of the circumstances under which Equity Interests in Crosstex Energy GP, LLC, the general partner of the Issuer (the “GP Interests”), free and clear of all Liens other than Guarantor Permitted Liens. The Guarantor believes, based on its own good faith investigation, that the fair market value of the GP Interests on such information was provideddate is in excess of the Commitment.
Appears in 1 contract
Representations and Warranties of the Guarantor. The Guarantor represents and warrants as followsto and agrees with each of the Dealers that:
(a) Each Loan Party The Guarantor is a corporation duly organized, validly limited partnership established and existing and in good standing under the laws of the jurisdiction of Limited Partnerships Act (Ontario), with full power, capacity and authority to own its organization.properties and to conduct business, and is lawfully qualified to do business in those jurisdictions in which business is conducted by it;
(b) The executionGuarantor has full power and capacity to execute and deliver this Agreement, the Covered Bond Guarantee and the Agency Agreement and to undertake and to perform the obligations expressed to be assumed by it herein and therein, and has taken all necessary corporate or other action to approve and to authorize the same;
(c) This Agreement, the Covered Bond Guarantee and the Agency Agreement have been duly authorized, executed and delivered by the Guarantor and constitute, legal, valid, binding and enforceable obligations of the Guarantor, as to enforcement, bankruptcy, insolvency, reorganization and the laws of general applicability relating to or affecting creditor’s rights and to general equity principles;
(d) All authorizations, consents, approvals, filings, notifications and registrations required by the Guarantor for or in connection with the execution and delivery and performance by each Loan Party of this Agreement and the Notes performance by the Guarantor of the obligations expressed to be delivered undertaken by itit herein and the distribution of the Prospectus and the relevant Prospectus Supplement have been obtained and are in full force and effect or, as the case may be, have been effected;
(e) The execution and delivery of this Agreement, the Trust Deed, the Covered Bond Guarantee, the Agency Agreement and the consummation of the transactions herein and therein contemplated hereby, are within and compliance with the such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, terms hereof and thereof do not contravene and will not (iA) conflict with or result in a breach of any of the such Loan Party's charter terms or by-laws provisions of, or other organizational documents or constitute a default under, the Limited Partnerships Act (iiOntario) law or any contractual restriction binding on or affecting any Loan Party.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the any Loan Party of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto enforceable against such Loan Party in accordance with their respective terms.
(e) The Consolidated balance sheet of the Guarantor and its Subsidiaries as at December 31, 2003, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer constitutional documents of the Guarantor, copies the laws of the Province of Ontario, Canada or (B) violate, conflict with or result in a breach of any terms, conditions or provisions, any indenture, trust deed, mortgage or other agreement or note to which have been furnished to each Lender, fairly present, subject, the Guarantor is a party or by which it or any of its assets or properties is bound and which would be material in the case of said balance sheet as at March 31, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition context of the Guarantor and its Subsidiaries as at such dates and the Consolidated results issue of the operations Securities, or (C) infringe any existing applicable law, rule, regulation, directive (including any relevant implementing measures), judgment, order or decree of Canada or any political subdivisions of the foregoing having jurisdiction over the Guarantor and or its Subsidiaries for assets or properties that would have an adverse material effect on holders of the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.Securities;
(f) The documents incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, as amended or supplemented, did not, as of their respective issue dates, contain an untrue statement of a material fact with respect to the Guarantor or the Covered Bond Guarantee or omit to state a material fact required to be stated therein with respect to the Guarantor or the Covered Bond Guarantee or necessary to make the statements therein with respect to the Guarantor or the Covered Bond Guarantee, in the light of the circumstances in which they were made, not misleading;
(g) The Guarantor has not engaged in any activities since its formation other than (A) those incidental to any registration as a limited partnership under the Limited Partnerships Act (Ontario); (B) the authorization and execution of the Transaction Documents to which it is a party; (C) the activities referred to or contemplated in the Transaction Documents or in the Pricing Disclosure Package and the Prospectus; or (D) the activities necessary to hold the Portfolio (as defined in the applicable Prospectus Supplement) and its other assets in accordance with the terms of the Transaction Documents;
(h) Other than as set out in any of the Transaction Documents there exists no mortgage, lien, pledge or other charge or security interest on or over its assets and other than the Transaction Documents, it has not entered into any other material indenture or trust deed;
(i) There exists no event or circumstance which is or may with the passing of time, the giving of notice, the making of any determination, or any combination thereof constitute, an Guarantor Event of Default (as defined in the Terms and Conditions) in relation to any outstanding Security;
(j) Subject to the laws of bankruptcy and other laws affecting the rights of creditors generally, its obligations under the Covered Bond Guarantee and the Transaction Documents to which it is a party will be secured in the manner provided in the Security Agreement;
(k) The Guarantor is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Pricing Disclosure Package and the Prospectus, will not be, required to register as an “investment company” as such term is defined in the U.S. Investment Company Act of 1940, as amended; and
(l) There is no pending action, suit, proceeding, inquiry or investigation before or brought by any court or any federal, provincial, state, municipal or other governmental department, commission, board, agency or body, domestic or foreign, now pending, or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation against or proceeding, including, without limitation, any Environmental Action, affecting the Guarantor or any of its Subsidiaries before any court, governmental agency or arbitrator that subsidiaries (i) could be reasonably likely to other than proceedings described in the Pricing Disclosure Package and proceedings that would not have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no or a material adverse change in the status, or financial effect on the Guarantor power or any of its Subsidiaries, ability of the Disclosed Litigation from that described on Schedule 3.01(b) hereto Guarantor to perform its obligations under this Agreement, the Trust Deed or the Securities or to consummate the transactions contemplated by the Pricing Disclosure Package or (ii) purports that is required to affect be described in the legalityRegistration Statement or the Prospectus and is not so described.
(a) On the basis of the representations and warranties, validity and subject to the terms and conditions, herein set forth, each of the Dealers hereby severally and not jointly agrees to use its reasonable efforts to solicit and receive offers to purchase the Securities upon the terms and conditions set forth herein, in the Prospectus as amended or enforceability supplemented from time to time and in any applicable Prospectus Supplement [or Term Sheet]. The Bank reserves the right, in its sole discretion, to instruct the Dealers to suspend at any time, for any period of time or permanently, the solicitation of offers to purchase the Securities. Upon receipt of instructions from the Bank, the Dealers will forthwith suspend solicitation of offers to purchase Securities from the Bank until such time as the Bank has advised the Dealers that such solicitation may be resumed. During such time as the solicitation of offers to purchase the Securities shall be suspended, the Bank shall not be required to comply with the provisions of Sections 5(e), 5(f) and 5(g). As Dealers, you are authorized to solicit offers to purchase the Securities only in accordance with applicable securities laws, and in authorized denominations as set forth in the Prospectus at a purchase price equal to 100% of their principal amount unless otherwise indicated on the applicable Term Sheet, if any, and Prospectus Supplement.
(b) Unless the Bank and the Dealers otherwise agree, each sale of Securities to any Dealer shall be made in accordance with the terms of this Agreement or and, unless the Bank and such Dealer shall otherwise agree, a Terms Agreement which will provide for the sale of such Securities to, and the purchase thereof by, such Dealer. A Terms Agreement may also specify certain provisions relating to the reoffering of such Securities by such Dealer. Unless the Bank and such Dealer shall otherwise agree, the commitment of any Note or Dealer to purchase Securities pursuant to any Terms Agreement shall be deemed to have been made on the consummation basis of the transactions contemplated herebyrepresentations and warranties, and subject to the terms and conditions, herein set forth. Each Terms Agreement shall include a specification of the principal amount of Securities to be purchased by any Dealer pursuant thereto, the price to be paid to the Bank for such Securities, any commissions to be paid to the Dealers, the currency in which such Securities are to be denominated, any provisions relating to rights of, and default by, any additional underwriters acting together with such Dealer in the reoffering of the Securities, and the time (each, a “Time of Delivery”) and place of delivery of and payment for such Securities. Such Terms Agreement shall also specify any requirements for officers’ certificates, opinions of counsel and accountants’ letters pursuant to Section 6 hereof.
(gc) No Loan Party Each Dealer severally agrees, with respect to any Security denominated in a currency other than U.S. dollars, as dealer, directly or indirectly, not to solicit offers to purchase, and as a principal under any Terms Agreement or otherwise, directly or indirectly, not to offer, sell or deliver, such Security in, or to residents of, the country issuing such currency (or if such Security is engaged denominated in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors euros, not to residents of the Federal Reserve System12 member states of the European Monetary Union; or if such Security is denominated in a composite currency, not to residents in any country issuing a currency comprising a portion of such composite currency), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stockexcept, in each case, as permitted by applicable law.
(hd) No Loan Party is an "investment company"Each Dealer severally represents and agrees with the Bank that it will comply with or observe any restrictions or limitations set forth in the Prospectus as amended or supplemented on persons to whom, or a company "controlled" by an "investment company"the jurisdictions or manner in which, within the meaning of the Investment Company Act of 1940Securities may be offered, as amendedsold, resold or delivered.
(ie) All factual information (taken as a whole) heretofore or contemporaneously furnished by or on behalf Each Dealer severally represents and agrees with the Bank that it will promptly advise the Bank upon the completion of the distribution of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes offering of or in connection with this Agreement or any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was providedSecurities.
Appears in 1 contract
Sources: Underwriting Agreement (BMO Covered Bond Guarantor Limited Partnership)
Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants to the Lender as follows:
(a) Each Loan Party The Guarantor is a corporation duly organizedsui juris and of full capacity to execute, validly existing deliver, and in good standing under the laws of the jurisdiction of its organizationperform this Guaranty.
(b) The execution, delivery delivery, and performance by each Loan Party of this Agreement Guaranty is within the Guarantor's power and is not in contravention of any law or of any indenture, agreement, undertaking, or other document to which the Notes to be delivered Guarantor is a party or by it, and which the consummation Guarantor or any of the transactions contemplated hereby, are within the such Loan PartyGuarantor's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the such Loan Party's charter property is bound or by-laws or other organizational documents or (ii) law or any contractual restriction binding on or affecting any Loan Partyaffected.
(c) No consent, license, approval, or authorization of, or approval or other action byregistration, and no notice to declaration, or filing with, any court, governmental authority body, authority, or regulatory body other person or any other third party entity is required for in connection with the due valid execution, delivery and delivery, or performance by the any Loan Party of this Agreement or the Notes to be delivered by itGuaranty.
(d) This Agreement has been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. This Agreement is, and each of the Notes when delivered hereunder will be, Guaranty constitutes the legal, valid valid, and binding obligation of each Loan Party party thereto the Guarantor, enforceable against such Loan Party in accordance with their respective termsits terms except as enforceability may be limited by applicable bankruptcy and insolvency laws and laws affecting creditors' rights generally.
(e) The Consolidated balance sheet of Except as disclosed in writing by the Guarantor and its Subsidiaries as at December 31, 2003, and to the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Guarantor and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Guarantor and its Subsidiaries for the three months then ended, duly certified by the chief financial officer of the Guarantor, copies of which have been furnished to each Lender, fairly presentthere are no actions, subjectsuits, in the case of said balance sheet as at March 31proceedings, 2004, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the Consolidated financial condition of the Guarantor and its Subsidiaries as at such dates and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change.
(f) There is no or investigations pending or, to the knowledge of the Guarantor, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting against the Guarantor or any of its Subsidiaries before basis therefor which, if adversely determined, would, in any court, governmental agency case or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation), and there has been no adverse change in the statusaggregate, materially adversely affect the property, assets, or financial effect on the Guarantor or any of its Subsidiaries, condition of the Disclosed Litigation from that described on Schedule 3.01(b) hereto or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated herebyGuarantor.
(gf) No Loan Party is engaged in the business of extending credit for the purpose of purchasing representation, warranty, or carrying margin stock (within the meaning of Regulation U issued statement by the Board of Governors of the Federal Reserve System), and no proceeds of Guarantor contained herein or in any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(h) No Loan Party is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
(i) All factual information (taken as a whole) heretofore or contemporaneously other document furnished by or on behalf of any Loan Party in writing to any Lender (including, without limitation, all information contained in this Agreement) for purposes of the Guarantor pursuant hereto or in connection with this Agreement or herewith fails to contain any transaction contemplated herein is, and all other such factual information (taken as a whole) hereafter furnished by or on behalf statement of such Loan Party in writing to any Lender will be, true and accurate in all material respects on the date as of which such information is dated or certified and does not or will not omit to state any fact necessary to make such information (taken as a whole) representation or warranty not misleading in any material respect at such time in light of the circumstances under which such information was providedit is made. There is no fact which the Guarantor knows or should know and has not disclosed to the Lender which does or may materially or adversely affect the Guarantor, the Borrower, or either of their respective operations.
Appears in 1 contract
Sources: Validity Guaranty (Divine Skin Inc.)