TGT » Topics » ARTICLE 4. REPRESENTATIONS AND WARRANTIES

This excerpt taken from the TGT 10-Q filed Jun 1, 2007.

ARTICLE 4.
REPRESENTATIONS AND WARRANTIES

 

The Borrower represents and warrants that:

 

Section 4.01                                Corporate Existence and Power. Each of the Borrower and each of its Consolidated Subsidiaries is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, and is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where, in light of the nature of the business transacted or the property owned by it, such qualification is necessary and the failure so to qualify might permanently impair title to property material to its operations or its right to enforce a material contract against others, or expose it to substantial liability in such jurisdiction.

 

Section 4.02                                Corporate and Governmental Authorization; No Contravention. The execution, delivery and performance by the Borrower of this Agreement and the Notes, if any, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, require no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, any provision of applicable law or regulation or of the articles of incorporation or by-laws of the Borrower or of any agreement or instrument evidencing or governing Debt of the Borrower or any other material agreement, judgment, injunction, order, decree or other instrument binding upon the Borrower or result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.

 

Section 4.03                                Binding Effect. This Agreement constitutes a valid and binding agreement of the Borrower and the Notes, if any, when executed and delivered in accordance with this Agreement, will constitute valid and binding obligations of the Borrower in each case enforceable in accordance with their respective terms, except as (i) the enforceability thereof

 

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may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability.

 

Section 4.04                                Financial Information. The consolidated statements of financial position of the Borrower and its Consolidated Subsidiaries as of February 3, 2007 and the related consolidated statements of results of operations, cash flows and shareholders’ investment for the fiscal year then ended, reported on by Ernst & Young, LLP and set forth in the Borrower’s Form 10-K for the fiscal year then ended, a copy of which has been delivered to each of the Banks, fairly present, in conformity with generally accepted accounting principles, the consolidated financial position of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year.

 

Section 4.05                                Litigation. There is no action, suit or proceeding pending against, or to the knowledge of the Borrower threatened against or affecting, the Borrower or any of its Subsidiaries before any court or arbitrator or any governmental body, agency or official which might reasonably be expected to materially adversely affect the business, consolidated financial position or consolidated results of operations of the Borrower and its Consolidated Subsidiaries or which in any manner draws into question the validity of this Agreement or any Note.

 

Section 4.06                                Compliance with ERISA. No Plan has incurred any “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Internal Revenue Code), whether or not waived. Neither the Borrower nor any of its Subsidiaries nor any Plan has engaged in any “prohibited transaction”, as such term is defined in Section 4975 of the Internal Revenue Code or Section 406 or 407 of ERISA, which might reasonably be expected to result, directly or indirectly, in any material liability of the Group. No Plan Event has occurred or is expected to occur which might reasonably be expected to result, directly or indirectly, in any liability of the Group. The accumulated benefit obligation of any Plan (as determined by the Plan’s actuaries) does not exceed the fair market value of such Plan’s assets as of the end of the most recent year-end of such Plan by more than $100,000,000. No “reportable event” (as defined in Section 4043 of ERISA) has occurred with respect to any Plan or any Multiemployer Plan which might reasonably be expected to result, directly or indirectly, in any liability of the Group. If the Borrower or any of its Subsidiaries or any ERISA Affiliate of any of them were to withdraw from any Plan described in Section 4063 of ERISA, or were to withdraw completely or partially from any Multiemployer Plan, neither the Borrower nor any of its Subsidiaries would incur, directly or indirectly, any liability under Title IV of ERISA in excess of $100,000,000.

 

Section 4.07                                Payment of Taxes. United States Federal income tax returns of the Borrower and its Subsidiaries have been examined and closed through the fiscal year ended January 31, 1998. The Borrower and its Subsidiaries have filed all United States Federal income tax returns and all other material tax returns which, to the best of the Borrower’s knowledge, are required to be filed by them and have paid all taxes due pursuant to such returns or pursuant to any assessment received by the Borrower or any Subsidiary, except for any such taxes which are being contested in good faith by appropriate proceedings and against which the Borrower in its judgment has set aside adequate reserves in accordance with generally accepted accounting principles.

 

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Section 4.08                                Full Disclosure. All information heretofore furnished by the Borrower to the Agent or any Bank for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all such information hereafter furnished by the Borrower to the Agent or any Bank will be, true and accurate in all material respects on the date as of which such information is stated or certified.

 

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