Financial Institution’s Representations and Warranties The Financial Institution represents and warrants to the Grantor and the Secured Party as follows:
Lender Representations (i) Each Lender represents that it is either (1) a corporation or banking association organized under the laws of the United States of America or any state thereof or (2) it is entitled to complete exemption from United States withholding tax imposed on or with respect to any payments, including fees, to be made to it pursuant to this Agreement (A) under an applicable provision of a tax convention to which the United States of America is a party or (B) because it is acting through a branch, agency or office in the United States of America and any payment to be received by it hereunder is effectively connected with a trade or business in the United States of America. Each Lender that is not a corporation or banking association organized under the laws of the United States of America or any state thereof agrees to provide to the Borrower and the Agent on the Closing Date, or on the date of its delivery of the Assignment pursuant to which it becomes a Lender, and at such other times as required by United States law or as the Borrower or the Agent shall reasonably request, two accurate and complete original signed copies of either (A) Internal Revenue Service Form 4224 (or successor form) certifying that all payments to be made to it hereunder will be effectively connected to a United States trade or business (the "Form 4224 Certification") or (B) Internal Revenue Service Form 1001 (or successor form) certifying that it is entitled to the benefit of a provision of a tax convention to which the United States of America is a party which completely exempts from United States withholding tax all payments to be made to it hereunder (the "Form 1001 Certification"). In addition, each Lender agrees that if it previously filed a Form 4224 Certification, it will deliver to the Borrower and the Agent a new Form 4224 Certification prior to the first payment date occurring in each of its subsequent taxable years; and if it previously filed a Form 1001 Certification, it will deliver to the Borrower and the Agent a new certification prior to the first payment date falling in the third year following the previous filing of such certification. Each Lender also agrees to deliver to the Borrower and the Agent such other or supplemental forms as may at any time be required as a result of changes in applicable law or regulation in order to confirm or maintain in effect its entitlement to exemption from United States withholding tax on any payments hereunder, provided that the circumstances of such Lender at the relevant time and applicable laws permit it to do so. If a Lender determines, as a result of any change in either (i) a Governmental Requirement or (ii) its circumstances, that it is unable to submit any form or certificate that it is obligated to submit pursuant to this Section 4.06, or that it is required to withdraw or cancel any such form or certificate previously submitted, it shall promptly notify the Borrower and the Agent of such fact. If a Lender is organized under the laws of a jurisdiction outside the United States of America, unless the Borrower and the Agent have received a Form 1001 Certification or Form 4224 Certification satisfactory to them indicating that all payments to be made to such Lender hereunder are not subject to United States withholding tax, the Borrower shall withhold taxes from such payments at the applicable statutory rate. Each Lender agrees to indemnify and hold harmless the Borrower or Agent, as applicable, from any United States taxes, penalties, interest and other expenses, costs and losses incurred or payable by (i) the Agent as a result of such Lender's failure to submit any form or certificate that it is required to provide pursuant to this Section 4.06 or (ii) the Borrower or the Agent as a result of their reliance on any such form or certificate which such Lender has provided to them pursuant to this Section 4.06.
AGENTS AND LENDERS rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that Agent or any Lender may have under any other agreement, including the other Loan Documents, by operation of law or otherwise. Recourse to the Collateral shall not be required.
Nonliability of Administrative Agent and Lenders The relationship between the Borrower, on the one hand, and the Lenders, the Issuing Banks and the Administrative Agent, on the other hand, shall be solely that of borrower and lender. None of the Administrative Agent, any Issuing Bank or any Lender shall have any fiduciary responsibilities to the Borrower and no provision in this Agreement or in any of the other Loan Documents, and no course of dealing between or among any of the parties hereto, shall be deemed to create any fiduciary duty owing by the Administrative Agent, any Issuing Bank or any Lender to any Lender, the Borrower, any Subsidiary or any other Loan Party. None of the Administrative Agent, any Issuing Bank or any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrower’s business or operations.
AGENT AND LENDERS EICF AGENT LLC, as Agent By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx Title: Authorized Signatory FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT ENERGY IMPACT CREDIT FUND I LP, as a Lender By: Energy Impact Credit Fund I GP LLC, its general partner By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx Title: Managing Partner FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT CION INVESTMENT CORPORATION, as a Lender By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx Title: President & Chief Investment Officer FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT XXXXXX XXXX FUNDING II, LLC, as a Lender By: /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx Title: President FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT CROWDOUT CAPITAL LLC, as a Lender By: /s/ Xxxxxxxxx Xxxxxxxxxx Name: Xxxxxxxxx Xxxxxxxxxx Title: Chief Executive Officer CROWDOUT CREDIT OPPORTUNITIES FUND LLC, as a Lender By: /s/ Xxxxxxxxx Xxxxxxxxxx Name: Xxxxxxxxx Xxxxxxxxxx Title: Chief Executive Officer FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT BORROWERS: XXXXXXXX INDUSTRIAL SERVICES GROUP INC., as Borrower By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Senior Vice President, Chief Administrative Officer, General Counsel and Secretary XXXXXXXX INDUSTRIAL SERVICES GROUP, L.L.C., as Borrower By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Secretary XXXXXXXX INDUSTRIAL SERVICES, LLC, as Borrower By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Assistant Secretary XXXXXXXX SPECIALTY SERVICES, LLC, as Borrower By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Assistant Secretary XXXXXXXX PLANT SERVICES, LLC, as Borrower By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Assistant Secretary FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT XXXXXXXX GLOBAL SERVICES, INC., as Borrower By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Secretary CONSTRUCTION & MAINTENANCE PROFESSIONALS, LLC, as Borrower By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Secretary FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT GUARANTORS: GLOBAL POWER PROFESSIONAL SERVICES INC., as Guarantor By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: President GPEG, LLC, as Guarantor By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Vice President STEAM ENTERPRISES LLC, as Guarantor By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: President WISG CANADA LTD., as Guarantor By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Secretary WISG NUCLEAR LTD., as Guarantor By: /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Chief Financial Officer WISG ELECTRICAL LTD., as Guarantor By: /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Chief Financial Officer FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT WISG ELECTRICAL, LLC, a New York limited liability company, as Guarantor By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Secretary FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT Exhibit A Marked Loan Agreement See attached. CONFORMED COPY – NOT EXECUTED IN THIS FORM INCORPORATING FIRST AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF JUNE 30, 2022, SECOND AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF DECEMBER 30, 2022, THIRD AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF JANUARY 9, 2023 AND , FOURTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF FEBRUARY 24, 2023, AND FIFTH AMENDMENT TO TERM LOAN, GUARANTEE AND SECURITY AGREEMENT, DATED AS OF MARCH 31, 2023 TERM LOAN, GUARANTEE AND SECURITY AGREEMENT DATED AS OF DECEMBER 16, 2020 AMONG EICF AGENT LLC, AS AGENT FOR THE LENDERS SIGNATORY HERETO, XXXXXXXX INDUSTRIAL SERVICES GROUP INC., AS BORROWER AND THE OTHER CREDIT PARTIES SIGNATORY HERETO XXXXXXX AND XXXXXX LLP 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx New York, New York 10020 TABLE OF CONTENTS PAGE
Reliance by Agents and Lenders The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify each Agent-Related Person and each Lender from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower in the absence of gross negligence or willful misconduct. All telephonic notices to the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
Borrower’s Representations Borrower hereby represents and warrants to Lender as follows:
Reliance by Administrative Agent and Lenders The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
Ratifications Representations and Warranties (a) The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement are ratified and confirmed and shall continue in full force and effect. Borrower and the Banks agree that the Credit Agreement, as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with its terms.
Reliance by Administrative Agent, L/C Issuers and Lenders The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices, Loan Notices, Letter of Credit Applications and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance in good faith by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
