Representations and Warranties of the Borrower. The Borrower represents and warrants as follows: (a) The execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect. (b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing. (c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect). (d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements. (e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 4 contracts
Sources: Credit Agreement (Interval Leisure Group, Inc.), Credit Agreement (Interval Leisure Group, Inc.), Credit Agreement (Interval Leisure Group, Inc.)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as followsthat:
(a) The executionBorrower is a corporation duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment has been duly authorized by State of Delaware, with all requisite corporate power and authority necessary corporate or other organizational action to own and does not (a) contravene service the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower Loan Assets and the Amendment, except, in the case of clause (b) or (d) only, Collateral and to conduct its business as would not reasonably be expected such business is presently conducted and to have a Material Adverse Effectenter into and perform its obligations pursuant to this Agreement.
(b) The Amendment Borrower (i) has the power, authority and legal right to (x) execute and deliver this Agreement; and (y) perform and carry out the terms of this Agreement and the Loan and Servicing Agreement as supplemented by this Agreement and the transactions contemplated thereby, and (ii) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Loan and Servicing Agreement as supplemented by this Agreement.
(c) This Agreement has been duly executed and delivered by the Borrower. The Amendment constitutes Borrower and this Agreement and the Loan and Servicing Agreement as supplemented by this Agreement constitute the legal, valid and binding obligations obligation of the Borrower, enforceable against the Borrower in accordance with its their respective terms, except to the extent as the enforceability hereof and thereof may be limited by applicable Debtor Relief Bankruptcy Laws affecting creditors’ rights generally and by equitable general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingequity.
(cd) No approval, consent of any other party and no consent, exemptionlicense, authorizationapproval or authorization of, or other action by, registration or notice to, or filing declaration with, any Governmental Authority Authority, bureau or any other Person agency is necessary or required in connection with the execution, delivery or performance by, or enforcement against, by the Borrower of this Amendment (Agreement or the Loan and Servicing Agreement as supplemented by this Agreement or the validity or enforceability of this Agreement or the Loan and Servicing Agreement as supplemented by this Agreement, other than (a) such as have already been met or obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) in each case, other than those consents, approvals, consentsregistrations, exemptions, authorizations, filings or other actions, notices or filings actions the failure of which to procure which would obtain or make could not reasonably be expected to have materially impact the rights and remedies of the Collateral Agent, the Administrative Agent, any Lender and the Secured Parties with respect to matters arising under this Agreement or any other Transaction Document or the ability of any of the Borrower to perform its obligations under this Agreement or any other Transaction Document to which it is a Material Adverse Effect)party.
(de) After giving effect to The execution, delivery and performance of this AmendmentAgreement, the Loan and Servicing Agreement as supplemented by this Agreement, and all other agreements and instruments executed and delivered or to be executed and delivered pursuant hereto or thereto will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, the Borrower’s certificate of formation or the Operating Agreement, (ii) result in the creation or imposition of any Lien on the Collateral other than Permitted Liens, (iii) violate any Applicable Law in any material respect, or (iv) violate any contract or other agreement to which the Borrower is a party or by which the Borrower or any property or assets of the Borrower may be bound.
(f) There is no litigation, proceeding or investigation pending or, to the knowledge of the Borrower, threatened in writing against the Borrower or any properties of the Borrower, before any Governmental Authority (i) asserting the invalidity of this Agreement or the Loan and Servicing Agreement as supplemented by this Agreement, or (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Borrower is a party.
(g) No Unmatured Event of Default or Event of Default shall have occurred and be continuing on the date hereof or shall result from the transactions contemplated hereby;
(h) The representations and warranties contained in each of this Agreement and the Credit other Transaction Documents are true and correct in all material respects (other than any representation or warranty already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of the date hereof as though if made on and as of such date except (or, if any such representation or warranty is expressly stated to the extent that such representations and warranties specifically refer to an earlier have been made as of a specific date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsspecific date), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.;
Appears in 4 contracts
Sources: Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp), Loan and Servicing Agreement (Star Mountain Lower Middle-Market Capital Corp), Commitment Increase Agreement (Star Mountain Lower Middle-Market Capital Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is (i) duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and (ii) duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations or properties.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Amendment has Borrower’s organizational powers, have been duly authorized by all necessary corporate or other organizational action and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or organizational documents, (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award law applicable to which the Borrower or its Property is subject; properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) result No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in the creation of any Lien (other than Permitted Liens); or full force and effect.
(d) violate This Agreement and the other Loan Documents to which it is, or is to become, a party have been or will be (as the case may be) duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, however, to any Law applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the enforcement of creditors’ rights and remedies and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(e) The consolidated financial statements of the Borrower and its Subsidiaries as of December 31, 2023, and for the Amendmentyear ended on such date, exceptas set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, as filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, and the consolidated financial statements of the Borrower and its Subsidiaries as of March 31, 2024, and for the fiscal quarter ended on such date, as set forth in the Borrower’s Quarterly Report on Form 10-Q for the fiscal quarter ended on such date, as filed with the SEC, copies of each of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, in accordance with GAAP, subject, in the case of clause such financial statements for the fiscal quarter ended March 31, 2024, to year-end adjustments and the absence of detailed footnotes. Except as disclosed in the Disclosure Documents, since December 31, 2023, there has been no material adverse change in the financial condition or operations of the Borrower.
(bf) Except as disclosed in the Disclosure Documents, there is no pending or threatened action or proceeding affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that could reasonably be expected to have a Material Adverse Effect. There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit 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. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) onlywill consist of or be represented by ▇▇▇▇▇▇ ▇▇▇▇▇.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as would amended.
(j) Except as could not reasonably be expected to result in a Material Adverse Effect, no ERISA Termination Event has occurred, or is reasonably expected to occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished to the Banks, is complete and accurate and fairly presents the funding status of such ERISA Plan, and since the date of such Schedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(l) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan and (ii) neither the Borrower nor any of its ERISA Affiliates has incurred any liability or obligation under the WARN Act, which remains unpaid or unsatisfied.
(m) The reports, financial statements and other written information furnished by or on behalf of the Borrower to the Administrative Agent, any LC Issuing Bank or any Lender pursuant to or in connection with the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
(n) As of the date delivered, the information included in the Beneficial Ownership Certification, if any, is true and correct in all respects.
(o) The Borrower has implemented and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Borrower, any Subsidiary thereof or any of their respective officers or employees, or (b) to the knowledge of the Borrower, any director or agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing or Letter of Credit or use of proceeds thereof or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) All payments due from the Borrower or any of its ERISA Affiliates on account of wages and employee and retiree health and welfare insurance and other benefits have been paid or properly accrued on the financial statements of the Borrower or such ERISA Affiliate, as applicable, in accordance with GAAP.
(q) The Borrower and its Subsidiaries have filed all federal, state and other Tax returns and reports required to be filed, and have paid all federal, state and other Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except (a) Taxes that that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained in accordance with GAAP or (b) to the extent that the failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 4 contracts
Sources: Credit Agreement (Entergy Mississippi, LLC), Credit Agreement (Entergy Mississippi, LLC), Credit Agreement (Entergy Mississippi, LLC)
Representations and Warranties of the Borrower. The In order to induce the Lender to enter into this Agreement and to make the Term Loan, the Borrower hereby represents and warrants the following to the Lender as followsof the Agreement Date:
(a) The execution, delivery and performance by the Borrower of the Amendment (i) has been duly authorized by all necessary corporate or other organizational action organized and does not (a) contravene is validly existing as a national banking association in good standing under the terms laws of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention United States of (i) any Contractual Obligation to which the Borrower is party or America, and (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award has the requisite organization power and authority to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower execute and deliver this Agreement and the AmendmentTerm Loan Note, except, in the case of clause (b) or (d) only, to perform its obligations hereunder and thereunder and to own its properties and conduct its business as would not reasonably be expected to have a Material Adverse Effectcurrently owned and conducted.
(b) The Amendment Borrower is not in violation of its by‑laws or article of association or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement or lease to which the Borrower is a party or by which it may be bound. The execution and delivery of this Agreement and the Term Loan Note and the incurrence of the obligations and the consummation of the transactions herein and therein contemplated will not conflict with, or constitute a breach of or default under, the article of association or by‑laws of the Borrower or any material contractual restriction, instrument, indenture, mortgage, agreement or lease to which the Borrower is a party or by which it may be bound, or any law, administrative rule or regulation or court decree.
(c) This Agreement has been duly authorized, executed and delivered by the Borrower. The Amendment Borrower and constitutes a legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its terms, except to as the extent the enforceability enforcement thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approvalbankruptcy, consent, exemption, authorization, insolvency or other action by, similar laws relating to or notice to, affecting generally the enforcement of creditors' rights or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)by general equitable principles.
(d) After giving effect to The Term Loan Note has been duly authorized for execution and delivery as contemplated by this AmendmentAgreement and, the representations when executed and warranties contained in each delivered, will constitute a legal, valid and binding obligation of the Credit Documents are true and correct Borrower enforceable in all material respects on and accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting generally the enforcement of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified creditors' rights or by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsgeneral equitable principles.
(e) No Default consent, approval, authorization, order, registration or Event qualification of Default shall exist immediately prior or with any court, any regulatory authority or other governmental agency or body is required for the execution or delivery of this Agreement or the Term Loan Note by the Borrower or for the consummation of the other transactions contemplated by this Agreement or the Term Loan Note.
(f) There are no legal or governmental proceedings pending to which the Borrower is a party or to which any property of the Borrower is subject, other than litigation which in each case will not have a Materially Adverse Effect on the Borrower, and, to the best of the Borrower's knowledge after due inquiry, no such proceedings are threatened or contemplated by governmental authorities or others.
(g) The Borrower has filed or caused to be filed all Tax returns due on or before the Agreement Date which are required to be filed and has paid all Taxes shown to be due and payable on such returns or on any assessments made against them (other than those being contested in good faith) and, to the best of the Borrower's knowledge after giving effect due inquiry, no Tax Liens have been filed and no claims are being asserted with respect to such Taxes which are not reflected in the financial statements referred to in Section 12(c) hereof, which, if adversely determined, would, in the aggregate, have a Materially Adverse Effect on the value of the total enterprise represented by the Borrower.
(h) No fact or circumstance, to the best of the Borrower's knowledge after due inquiry, either alone or in conjunction with all other such facts and circumstances, has had or might in the future have (so far as the Borrower can foresee) a Materially Adverse Effect on the Borrower, this Agreement or the Term Loan Note.
(i) The Borrower is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) The Borrower is currently in compliance with all Applicable Laws (including, without limitation, Anti-Terrorism Laws, Anti-Corruption Laws, ERISA and Environmental Laws), the non-compliance with which would have a Materially Adverse Effect on the Borrower, this Amendment Agreement or the Term Loan Note.
(k) The Parent is the legal and beneficial owner of a majority interest, directly or indirectly, of each and every type and class (iivoting and nonvoting) of all outstanding shares and other equity interests (including all rights to acquire shares and other equity interests) of the Borrower.
(l) None of the Borrower, any Credit Extension made Subsidiary or any of their respective directors, officers or employees, or any agent of the Borrower or any Subsidiary acting on their behalf in connection herewithwith, or benefitting from, the loan facility established hereby, is a Sanctioned Person. No Term Loan, use of proceeds or other transaction contemplated by this Agreement, any Term Loan Note, or any other documents to be executed in connection with this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
Appears in 3 contracts
Sources: Credit Agreement (MUFG Americas Holdings Corp), Credit Agreement (MUFG Americas Holdings Corp), Credit Agreement (MUFG Americas Holdings Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and is duly qualified to do business as a foreign organization in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except where failure to so qualify would not materially adversely affect its business, condition (financial or otherwise), operations, properties or prospects.
(b) The execution, delivery and performance by the Borrower of each Loan Document to which it is, or is to become, a party, are within the Amendment has Borrower’s organizational powers, have been duly authorized by all necessary corporate or other organizational action and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or organizational documents, (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award law applicable to which the Borrower or its Property is subject; properties, or (iii) any contractual or legal restriction binding on or affecting the Borrower or its properties.
(c) result No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement (including obtaining any Extensions of Credit under this Agreement) or any other Loan Document to which it is, or is to become, a party, except for the FERC Authorization, which has been duly obtained, and is in the creation of any Lien (other than Permitted Liens); or full force and effect.
(d) violate any Law applicable to the Borrower This Agreement and the Amendmentother Loan Documents to which it is, exceptor is to become, in a party have been or will be (as the case of clause (bmay be) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by it, and this Agreement is, and upon execution and delivery thereof each other Loan Document will be, the Borrower. The Amendment constitutes legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its terms, except subject, however, to any applicable bankruptcy, reorganization, rearrangement, moratorium or similar laws affecting generally the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting enforcement of creditors’ rights generally and by equitable remedies and to general principles of law equity (regardless of whether enforcement enforceability is sought considered in a proceeding in equity or at law) and implied covenants of good faith and fair dealing).
(ce) No approvalThe consolidated financial statements of the Borrower and its Subsidiaries as of December 31, consent2011 and for the year ended on such date, exemptionas set forth in the Borrower’s Annual Report on Form 10-K for the fiscal year ended on such date, authorizationas filed with the SEC, accompanied by an opinion of Deloitte & Touche LLP, copies of which have been furnished to each Bank, fairly present the consolidated financial condition of the Borrower and its Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, in accordance with GAAP. Except as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011, since December 31, 2011, there has been no material adverse change in the financial condition or other operations of the Borrower.
(f) Except as disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011, there is no pending or threatened action by, or notice to, or filing with, any Governmental Authority proceeding affecting the Borrower or any other Person is necessary of its Subsidiaries before any court, governmental agency or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not arbitrator that could reasonably be expected to have a Material Adverse Effect). There has been no change in any matter disclosed in such filings that could reasonably be expected to result in such a Material Adverse Effect.
(g) No event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Extension of Credit 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. After applying the proceeds of each Extension of Credit, not more than 25% of the value of the assets of the Borrower and its Subsidiaries subject to the restrictions of Section 5.02(a), (c) or (d) After giving effect to this Amendment, will consist of or be represented by Margin Stock.
(i) The Borrower is not an “investment company” or a company “controlled” by an “investment company” within the representations and warranties contained in each meaning of the Credit Documents are true and correct Investment Company Act of 1940, as amended.
(j) Except as could not reasonably be expected to result in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to a Material Adverse Effect shall be true and correct in all respects)Effect, and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed no ERISA Termination Event has occurred, or is reasonably expected to refer occur, with respect to any ERISA Plan.
(k) Schedule B (Actuarial Information) to the most recent financial statements annual report (Form 5500 Series) with respect to each ERISA Plan, copies of which have been filed with the Internal Revenue Service and furnished pursuant to Section 7.01(a) the Banks, is complete and (b) accurate and fairly presents the funding status of the Credit Agreement such ERISA Plan, and to since the date of such financial statementsSchedule B there has been no change in such funding status that could reasonably be expected to result in a Material Adverse Effect.
(el) No Default Except as could not reasonably be expected to result in a Material Adverse Effect, the Borrower has not incurred, and does not reasonably expect to incur, any withdrawal liability under ERISA to any Multiemployer Plan.
(m) The reports, financial statements and other written information furnished by or Event on behalf of Default shall exist immediately prior the Borrower to and after giving effect the Administrative Agent, any LC Issuing Bank or any Lender pursuant to (i) this Amendment and (ii) any Credit Extension made or in connection herewithwith the Loan Documents and the transactions contemplated thereby, when considered in their totality together with the information set forth in the Borrower’s periodic reports filed as of any date of determination with the SEC under the Securities Exchange Act of 1934, as amended, do not contain and will not contain, when taken as a whole, any untrue statement of a material fact and do not omit and will not omit, when taken as a whole, to state any fact necessary to make the statements therein, in the light of the circumstances under which they were or will be made, not misleading in any material respect; provided that, with respect to projections and forward looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions and estimates believed to be reasonable at the time made and notes that whether or not such projections or forward looking statements are in fact achieved will depend upon future events some of which are not within the control of the Borrower and actual results may vary from the projections and such variations may be material and, accordingly, the Borrower gives no representation and warranty that such projections and forward looking statements will be achieved.
Appears in 3 contracts
Sources: Credit Agreement (Entergy Texas, Inc.), Credit Agreement (Entergy Texas, Inc.), Credit Agreement (Entergy Texas, Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes or CAF Notes (if any), and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not (ai) contravene the terms Borrower’s certificate of incorporation or by laws or any law or any contractual restriction binding on or affecting the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party , or (ii) constitute a default under any orderexisting indenture, injunction, writ loan agreement or decree of any Governmental Authority or any arbitral award other material agreement to which the Borrower or its Property any Subsidiary of the Borrower is subject; a party.
(c) result in 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 creation due execution, delivery and performance by the Borrower of any Lien this Agreement or the Notes or CAF Notes (other than Permitted Liensif any); , and no law or regulation is applicable that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) violate any Law applicable to This Agreement has been, and each of the Notes or CAF Notes (if any) when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each of the Notes or CAF Notes (if any) when delivered hereunder will be, the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2006, and the Amendmentrelated Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, exceptaccompanied by an opinion of Deloitte & Touche LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present, in all material respects, the case Consolidated financial condition of clause the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2006, there has been no Material Adverse Change.
(bf) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could, as of the Effective Date, be reasonably likely to have a Material Adverse Effect or (dii) onlypurports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, 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) Neither the Borrower nor any Subsidiary of the Borrower is an “investment company” as defined in, or otherwise subject to regulation under, the Investment Company Act of 1940, as would amended.
(i) The Borrower is and each of its Subsidiaries are in substantial compliance with all applicable laws, ordinances, rules, regulations, and requirements of governmental authorities (including, without limitation, Environmental Laws and ERISA and the rules and regulations thereunder) except for any non-compliance that could not reasonably be expected to have a Material Adverse Effect.
(bj) The Amendment has been duly executed and delivered All written information heretofore furnished by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority Administrative Agent or any other Person is necessary Lender for purposes of or required in connection with the executionthis Agreement or any transaction contemplated hereby or thereby is, delivery or performance by, or enforcement against, and all such information hereafter furnished by the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvalsAdministrative Agent or any Lender will be, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct accurate in all material respects on the date as of which such information is stated in the light of the circumstances under which such information was provided (as modified or supplemented by other information so furnished, when taken together as a whole as of the date so stated); provided, that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based on assumptions believed to be reasonable at the time, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results. The Borrower has disclosed to the Administrative Agent any and all facts specific to the Borrower and its Subsidiaries and known as of the date hereof as though made on to a Responsible Officer of the Borrower that could reasonably be expected to result in a Material Adverse Effect or which could reasonably be expected to materially and as of such date except adversely affect or may affect (to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsthe Borrower can now reasonably foresee), and except that the representations and warranties contained in Section 6.05 business, operations or financial condition of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) Borrower and (b) of the Credit Agreement and to the date of such financial statementsits Subsidiaries, taken as a whole.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 3 contracts
Sources: Credit Agreement (Centerpoint Energy Inc), Credit Agreement (Centerpoint Energy Houston Electric LLC), Credit Agreement (Centerpoint Energy Resources Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The executionBorrower is a corporation duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment has been State of Delaware and is duly qualified, authorized by all necessary corporate or other organizational action to do business and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to good standing in each jurisdiction in which the Borrower it is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result presently engaged in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable business except to the Borrower and extent that the Amendment, except, failure to so qualify or be in the case of clause (b) or (d) only, as would good standing could not reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Borrower of this Amendment has and the other Amendment Documents (i) are within the Borrower’s corporate powers, have been duly executed and delivered authorized by the Borrower. The Amendment constitutes legalall necessary corporate action, valid and binding obligations (ii) do not contravene (A) any of the Borrower’s Governing Documents, enforceable against (B) any Requirement of Law or (C) any contract of the Borrower in accordance with its terms, except listed as an exhibit to the extent Registration Statement or otherwise filed by the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally Borrower with the Securities and by equitable principles Exchange Commission and (iii) will not result in the imposition of law (regardless any Lien upon any of whether enforcement is sought its properties except in equity or at law) and implied covenants favor of good faith and fair dealingthe Agent.
(c) No approval, consent, exemption, authorization, authorization or other action by, or notice toapproval of, or filing withwith or other act by, any shareholders of the Borrower, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery delivery, performance, validity or performance by, or enforcement against, the Borrower enforceability of this Amendment or any other Amendment Document to which the Borrower is a party, the consummation of the transactions contemplated hereby or thereby or the continuing operations of the Borrower following such consummation.
(d) This Amendment, the other than Amendment Documents to which the Borrower is a party and the Loan Agreement as amended hereby constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by (ai) as have already been obtained and are in full force and effectbankruptcy, (b) filings to perfect security interests granted pursuant to the Amendment insolvency or similar laws affecting creditors’ rights generally and (cii) approvalsgeneral principles of equity.
(e) No judgments, consentsorders, exemptionswrits or decrees are outstanding against it, authorizationsnor is there now pending or, to its knowledge, threatened litigation, contested claim, investigation, arbitration, or other actions, notices governmental proceeding by or filings against the failure to procure which would not Borrower that (i) individually or in the aggregate could reasonably be expected to have a Material Adverse Effect)Effect or (ii) purports to affect the legality, validity or enforceability of this Amendment, any of the other Amendment Documents to which the Borrower is a party, the Loan Agreement as amended hereby or the consummation of the transactions contemplated hereby or thereby.
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(ef) No Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithis continuing.
Appears in 3 contracts
Sources: Loan and Security Agreement (American Railcar Industries, Inc./De), Loan and Security Agreement (American Railcar Industries, Inc./De), Loan and Security Agreement (American Railcar Industries, Inc./De)
Representations and Warranties of the Borrower. The Except as otherwise disclosed, the Borrower represents and warrants as of the date hereof as follows:
(a) The execution, delivery Borrower is a corporation duly organized and performance by validly existing under the Borrower laws of the Amendment has been duly authorized by all necessary corporate or other organizational action State of Nevada. The Borrower and does not (a) contravene the terms each Major Subsidiary is conducting its business in compliance with its Organizational Documents. The Organizational Documents of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and each Major Subsidiary (including all amendments thereto) as currently in effect have been made available to the AmendmentLender and remain in full force and effect with no defaults outstanding thereunder. All authorizations, exceptconsents, approvals, registrations, exemptions and licenses with or from Government Authorities that are necessary for the conduct of the business of the Borrower and each Major Subsidiary as currently conducted and as proposed to be conducted have been obtained and are in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effectfull force and effect.
(b) The Amendment Borrower has been duly executed full power and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations authority to enter into each of the BorrowerFinancing Documents and to make the borrowings and the other transactions contemplated thereby. All authorizations, enforceable against consents, approvals, registrations, exemptions and licenses that are necessary for the Borrower in accordance with its termsborrowing hereunder, except to the extent execution and delivery of the enforceability thereof may be limited Financing Documents and the performance by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as its obligations thereunder have already been obtained and are in full force and effect, (b) except for registrations and filings to perfect security interests granted in connection with the issuance of the warrants and shares of Common Stock pursuant to the Amendment Financing Documents, and filings necessary to comply with laws, rules, regulations and orders required in the ordinary course of business.
(c) approvalsNeither the entering into any of the Financing Documents nor the compliance with any of its terms conflicts with, consents, exemptions, authorizationsviolates or results in a breach of any of the terms of, or other actionsconstitutes a default or event of default (however described) or requires any consent under, notices to the extent applicable, (i) any agreement to which the Borrower is a party or filings by which it is bound, (ii) any of the failure terms of the Organizational Documents, or (iii) any judgment, decree, resolution, award or order or any statute, rule or regulation applicable to procure which would not reasonably be expected to have a Material Adverse Effect)the Borrower or its assets.
(d) After giving effect to this AmendmentNeither the Borrower nor any Major Subsidiary (i) is bankrupt or insolvent or (ii) has taken action, and no such action has been taken by a third party, for the representations and warranties contained winding up, dissolution, or liquidation or similar proceeding or for the appointment of a liquidator, custodian, receiver, trustee, administrator or other similar officer, in each case for the Borrower or any Major Subsidiary or all of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality their respective businesses or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsassets.
(e) No Default or Event The obligation of Default shall exist immediately prior the Borrower to and after giving effect to make any payment under this Agreement (i) this Amendment and (ii) any Credit Extension made together with all charges in connection herewiththerewith) is absolute and unconditional, and there exists no right of setoff or recoupment, counterclaim, cross-claim or defense of any nature whatsoever to any such payment.
Appears in 3 contracts
Sources: Loan Agreement (Composite Technology Corp), Loan Agreement (Composite Technology Corp), Loan Agreement (Composite Technology Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority (including all governmental licenses, permits and other approvals) to own, lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes, and the consummation of the transactions contemplated hereby, are within the Borrower's corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party Borrower's charter or by-laws or (ii) any orderlaw or contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, injunctionand no notice to or filing with, writ or decree of any Governmental Authority or regulatory body or any arbitral award to which other third party is required for the due execution, delivery and performance by the Borrower of this Agreement or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or Notes.
(d) violate any Law applicable to This Agreement has been, and each of the Borrower and the AmendmentNotes when delivered hereunder will have been, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(ce) No approvalThere is no pending or threatened action, consentsuit, exemptioninvestigation, authorization, litigation or other action by, or notice to, or filing with, any Governmental Authority proceeding affecting the Borrower or any other Person is necessary of its Subsidiaries before any court, governmental agency or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment arbitrator that (other than (ai) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not could be reasonably be expected likely to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality Effect or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) purports to affect the legality, validity or enforceability of this Agreement or any Credit Extension made in connection herewith.Note or the consummation of the transactions contemplated hereby. ARTICLE V
Appears in 3 contracts
Sources: Revolving Credit Agreement (Liberty Entertainment, Inc.), Revolving Credit Agreement (Liberty Entertainment, Inc.), Revolving Credit Agreement (Liberty Entertainment, Inc.)
Representations and Warranties of the Borrower. 6.1. The Borrower represents hereby acknowledges and warrants agrees that, until such time as follows:
(a) The executionthe Closing Date shall occur, delivery all liabilities and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent Lender under the enforceability thereof may be limited Loan Documents, as modified by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approvalthe Modification Agreement, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are shall remain in full force and effect, and shall not be released, impaired, diminished or in any other way modified or amended as a result of the execution and delivery of this Agreement or by the agreements and undertakings of the parties contained herein.
6.2. The Borrower hereby acknowledges and agrees that, effective upon the delivery of the Grant Deed, the conveyance of the Property to the Lender shall be an absolute conveyance of all of the Borrower's right, title and interest in and to the Property and is not now intended to be, nor shall it ever be, construed as being a deed of trust, mortgage, trust conveyance, or other security agreement of any nature whatsoever, and that neither Borrower nor anyone claiming by, through or under the Borrower shall have any further interest (bincluding specifically, but without implied limitation, any rights of redemption) filings or claims in and to perfect security interests granted the Property or to the rents, issues or profits and other proceeds that may be derived therefrom, of any kind whatsoever. Upon the delivery of the Grant Deed, the Borrower shall not retain, nor be given, any right to occupy, redeem, encumber or purchase the Property.
6.3. Immediately following the delivery of the Grant Deed pursuant to the Amendment and (c) approvalsterms of this Agreement, consents, exemptions, authorizations, or other actions, notices or filings the failure Borrower will deliver possession of the Property to procure which would not reasonably be expected to have a Material Adverse Effect)the Lender.
(d) After giving effect to this Amendment, 6.4. This Agreement and the representations and warranties contained in each Conveyance Documents were reviewed by the general partner of the Credit Documents are true Borrower, who acknowledges and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent agrees that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.it:
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) understands fully the terms of this Amendment Agreement and the Conveyance Documents and the consequences of the issuance hereof and thereof; (ii) has been afforded an opportunity to have this Agreement and the Conveyance Documents reviewed by its attorneys and to discuss all such documents with such attorneys and other consultants as it may wish; and (iii) has entered into this Agreement and executed and issued the Conveyance Documents of its own free will and accord and without threat or duress.
6.5. The Borrower shall execute and deliver to the Lender at Lender's expense such other documents and instruments and perform such further acts as reasonably requested by the Lender to effectuate the transactions contemplated hereby provided the same do not result in any Credit Extension made in connection herewithmaterial additional liability to Borrower, including without limitation, obtaining necessary consents to an assignment of any permits and licenses relating to the Property.
Appears in 2 contracts
Sources: Mortgage Loan Modification Agreement (Resources Accrued Mortgage Investors 2 Lp), Mortgage Loan Modification Agreement (High Cash Partners L P)
Representations and Warranties of the Borrower. The Borrower represents and warrants to Agent and each Lender as follows:
(a) It has all requisite power and authority under applicable law and under its organizational documents to execute, deliver and perform its obligations under this Amendment, and to perform its obligations under the Credit Agreement as amended hereby;
(b) All actions, waivers and consents (corporate, regulatory and otherwise) necessary or appropriate for it to execute, deliver and perform its obligations under this Amendment and to perform its obligations under the Credit Agreement as amended hereby, have been taken and/or received;
(c) This Amendment and the Credit Agreement, as amended by this Amendment, constitute the legal, valid and binding obligation of it enforceable against it in accordance with the terms, except as the enforceability hereof or thereof may be affected by bankruptcy, insolvency, reorganization, moratorium, or other similar laws affecting the enforcement of creditors’ rights generally, and the limitation of certain remedies by certain equitable principles of general applicability;
(d) The execution, delivery and performance of this Amendment, and the performance by the Borrower of its obligations under the Amendment has been duly authorized by all necessary corporate Credit Agreement, as amended hereby, will not violate or other organizational action and does not contravene (a) contravene any provision of any federal (including the terms Exchange Act), state, or local law, rule, or regulation (including Regulations T, U, and X of the Borrower’s Organization Documents; Federal Reserve Board) binding on it, (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree order of any Governmental Authority domestic governmental authority, court, arbitration board, or any arbitral award to which the Borrower or its Property is subject; tribunal binding on it, (c) the Governing Documents of Borrower or any Subscription Agreement, or any other contractual obligations between Borrower or Adviser and any Investor, or (d) any provisions of, result in a breach of, constitute (with the giving of notice or the lapse of time) a default under, or result in the creation of any Lien (other than a Permitted Liens); or (dLien) violate upon any Law applicable to of the Assets of the Borrower and the Amendmentpursuant to, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations any Contractual Obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.;
(ce) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the The representations and warranties contained in each of the Credit Agreement, the Security Agreement and the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof of this Amendment, before and after giving effect to the same, as though made on and as of such date (except to the extent that such representations and warranties specifically refer solely relate to an earlier date);
(f) No Event of Default or Unmatured Event of Default has occurred or is continuing on the date of this Amendment or would result from the transactions contemplated by this Amendment; and
(g) The Security Agreement continues to create a valid security interest in, and Lien upon, the Collateral, in favor of the Agent, for the benefit of the Lenders, which case they shall be security interests and Liens are perfected in accordance with the terms of the Security Agreement and prior to all Liens other than Permitted Liens; and
(h) As of the date hereof, the incumbency certificate, resolutions and the Governing Documents of the Borrower delivered to Agent on the Closing Date remain true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementswithout amendment thereto.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Credit Agreement (Kayne DL 2021, Inc.), Credit Agreement (Kayne DL 2021, Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the law of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not and will not contravene, or other organizational action and does not (a) contravene the terms cause or constitute a violation of, any provision of law or regulation or any provision of the Borrower’s Organization Documents; (b) conflict with charter or by-laws or result in the breach of, or constitute a default or require any breach consent under, or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien lien, charge or encumbrance upon any of the properties, revenues, or assets of the Borrower pursuant to, any indenture or other material agreement or instrument to which the Borrower is a party or by which the Borrower or its property may be bound or affected.
(c) No authorization, consent, approval (including any exchange control approval), license or other than Permitted Liens); action by, and no notice to or filing or registration with, any governmental authority, administrative agency or regulatory body or any other third party (including any creditor) is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes to be delivered by it.
(d) violate any Law applicable This Agreement has been, and each of the Notes to the Borrower and the Amendmentbe delivered by it when delivered hereunder will have been, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its termstheir respective terms (subject, except as to the extent the enforceability thereof may be limited by enforcement of remedies, to applicable Debtor Relief Laws bankruptcy, reorganization, moratorium and similar laws affecting creditors’ creditors rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealinggenerally).
(ce) No approvalThe Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, consent2003, exemptionand the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended (together with the notes to the financial statements of the Borrower and its Consolidated Subsidiaries), authorizationaccompanied by an opinion of Ernst & Young LLP, independent public accountants, the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such date, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2003, there has been no Material Adverse Change, except as otherwise publicly disclosed.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower 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) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby, and there has been no material adverse change in the status, or other action byfinancial effect on the Borrower or on the Borrower and its Subsidiaries taken as a whole, of the Disclosed Litigation from that described in the Exchange Act Disclosure.
(g) Neither the Borrower nor its Subsidiaries are 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. Following application of the proceeds of each Advance, not more than 25 percent of the value of the assets (either of the Borrower or of the Borrower and its relevant Subsidiaries on a Consolidated basis) subject to any of the covenants contained in Article V will be margin stock (within the meaning of Regulation U).
(h) The Borrower is not, and immediately after the application of the proceeds of each Borrowing, will not be, (i) an “investment company”, or notice toa company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended, or filing with(ii) a “holding company” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(i) Neither this Agreement nor any Governmental Authority other document delivered by or on behalf of the Borrower or any other Person is necessary or required of its Affiliates in connection with this Agreement or included therein contained or contains any material misstatement of fact or omitted or omits to state any material fact necessary to make the executionstatements therein, delivery in the light of the circumstances under which they were made, not misleading.
(j) The Borrower and each of its Subsidiaries and ERISA Affiliates have met their minimum funding requirements under ERISA with respect to their Plans in all material respects and have not incurred liability to the PBGC in an amount in excess of $100,000,000, individually or performance byin aggregate, other than for the payment of premiums, in connection with such Plans.
(k) No ERISA Event has occurred or enforcement againstis reasonably expected to occur with respect to any Plan and no condition or event currently exists or currently is expected to occur that could result in any ERISA Event.
(l) The Schedules B (Actuarial Information) to the most recent annual reports (Form 5500 Series) with respect to each Plan, copies of which have been filed with the Internal Revenue Service (and which will be furnished to any Lender through the Agent upon the request of such Lender through the Agent to the Borrower), are complete and accurate in all material respects and fairly present in all material respects the funding status of such Plans at such date.
(m) No amendment with respect to which security is required under Section 401(a)(29) of the Code or Section 307 of ERISA has been made or is reasonably expected to be made to any Plan. The aggregate Underfunding with respect to all Plans which have any Underfunding does not exceed $100,000,000.
(n) Neither the Borrower nor any of this Amendment its Subsidiaries or ERISA Affiliates has incurred or reasonably expects to incur any Withdrawal Liability to any Multiemployer Plan in an amount in excess of $100,000,000, individually or in aggregate.
(o) Neither the Borrower nor any of its Subsidiaries or ERISA Affiliates has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA. No Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA, in a reorganization or termination which might reasonably be expected to result in a liability of the Borrower or any of its Subsidiaries or ERISA Affiliates in an amount in excess of $100,000,000, individually or in aggregate.
(p) No default under any agreement or instrument evidencing any Indebtedness of the Borrower or any of its Subsidiaries has occurred and is continuing, and no such event will occur upon the occurrence of the Effective Date, other than any such default which could not be reasonably expected to have a Materially Adverse Effect.
(aq) The operations and properties of the Borrower and its Subsidiaries taken as a whole comply in all material respects with all applicable Environmental Laws, all necessary Environmental Permits have already been applied for or have been obtained and are in full force effect for the operations and effectproperties of the Borrower and its Subsidiaries, (b) filings to perfect security interests granted pursuant to and the Amendment Borrower and (c) approvalsits Subsidiaries are in compliance in all material respects with all such Environmental Permits other than, consentsin any such case, exemptions, authorizations, or other actions, notices or filings the where any such failure to procure which would could not be reasonably be expected to have a Material Adverse Effect).
(d) After giving effect . Except as described in the Exchange Act Disclosure, no circumstances exist that would be reasonably likely to this Amendment, form the representations and warranties contained in each basis of an Environmental Action against the Credit Documents are true and correct in all material respects on and as Borrower or any of the date hereof as though made on and as its Subsidiaries or any of such date except to the extent their properties that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to could have a Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsEffect.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Credit Agreement (Williams Companies Inc), Credit Agreement (Williams Companies Inc)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The execution, delivery execution of this Amendment is within the Borrower’s corporate or other organizational powers and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any orderactions and, injunctionif required, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The actions by equity holders. This Amendment has been duly executed and delivered by the Borrower. The Borrower and this Amendment constitutes and the Amended Credit Agreement constitute legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its their terms, except subject to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and by equitable subject to general principles of law (equity, regardless of whether enforcement is sought considered in a proceeding in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to As of the Amendment date hereof and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After after giving effect to the terms of this Amendment, (i) no Default or Event of Default has occurred and is continuing and (ii) the representations and warranties contained in each Article III of the Amended Credit Documents Agreement are true and correct in all material respects on and as of the date hereof as though made on and as of such date (except to the extent that any such representations and warranties specifically refer which are already qualified as to an materiality or by reference to Material Adverse Effect shall be treated as correct in all respects), except to the extent such representations and warranties expressly relate to any earlier date, in which case they shall be such representations and warranties were true and correct in all material respects on and (except that any representation or warranty which is already qualified as of such earlier date (provided that representations and warranties that are qualified by to materiality or by reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 ) as of such earlier date.
(c) None of the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of this Amendment, the Amended Credit Agreement shall be deemed to refer to and the most recent financial statements furnished pursuant to Section 7.01(atransactions contemplated hereby and thereby (a) 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, (b) will violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Credit Agreement and Borrower or any of its Subsidiaries or any order of any Governmental Authority, (c) will violate or result in a default under any indenture, material agreement or other material instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the date Borrower or any of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment its Subsidiaries, and (iid) will result in the creation or imposition of any Credit Extension made in connection herewithLien on any asset of the Borrower or any of its Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Ugi Corp /Pa/), Credit Agreement (Ugi Corp /Pa/)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) 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 power and authority to own its property and assets and to carry on its business as now conducted and as proposed to be conducted, (iii) is qualified to do business in every jurisdiction where such qualification is required, except where the failure so to qualify would not result in a Material Adverse Effect, and (iv) has the corporate power and authority to execute, deliver and perform its obligations under this Amendment.
(b) The execution, delivery and performance by the Borrower of this Amendment and the Amendment has Loan Documents, as amended hereby, to which it is a party, and the consummation of the transactions contemplated hereby (i) have been duly authorized by all necessary requisite corporate or other organizational action actions and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) will not (A) violate (1) any orderprovision of any law, injunctionstatute, writ rule or decree regulation (including, without limitation, the Margin Regulations) or of its certificate of incorporation or other constitutive documents or by-laws, (2) any order of any Governmental Authority or (3) any arbitral award provision of any indenture, agreement or other instrument to which it is a party or by which it or any of its property is or may be bound, (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under any such indenture, agreement or other instrument or (C) except for the Borrower or its Property is subject; (c) Liens created under the Collateral Documents, result in the creation or imposition of any Lien (other than Permitted Liens); or (d) violate lien upon any Law applicable to of the properties of the Borrower and the Amendment, except, in the case or any of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effectits Subsidiaries.
(bc) The This Amendment has been duly executed and delivered by the Borrower. The This Amendment constitutes and the Credit Agreement and the Notes, as amended hereby, are the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its their respective terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(cd) No approvalaction, consentconsent or approval of, exemption, authorization, registration or filing with or any other action byby any Governmental Authority is or will be required in connection with the due execution, delivery, recordation, filing or notice to, performance by the Borrower of this Amendment.
(e) There are no actions or filing with, proceedings filed or (to its knowledge) investigations pending or threatened against it in any court or before any Governmental Authority or any other Person is necessary arbitration board or required tribunal which question the validity, enforceability or legality of or seek damages in connection with this Amendment or the Credit Agreement and the Notes, as amended hereby, or any action taken or to be taken pursuant to this Amendment or the Credit Agreement and the Notes, as amended hereby, and no order or judgment has been issued or entered restraining or enjoining it from the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) or the Credit Agreement and the Notes, as have already been obtained and are in full force and effectamended hereby, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, nor is there any action or other actions, notices or filings the failure to procure proceeding which involves a probable risk of an adverse determination which would not reasonably be expected to have a Material Adverse Effect).
any such effect; (dii) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and nor is there as of the date hereof as though made on and as any other action or proceeding filed or (to its knowledge) investigation pending or threatened against it in any court or before any Governmental Authority or arbitration board or tribunal which involves a probable risk of such date except to the extent that such representations and warranties specifically refer to an earlier date, a material adverse decision which would result in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to a Material Adverse Effect shall be true and correct , except as provided in all respects)the Borrower’s Annual Report on Form 10-K for the fiscal quarter ended September 30, and except that 2003, or materially restrict the representations and warranties contained in Section 6.05 ability of the Credit Agreement shall be deemed it to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of comply with its obligations under this Amendment or the Credit Agreement and to the date of such financial statementsNotes, as amended hereby.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Five Year Revolving Credit Facility Agreement (Avaya Inc), Five Year Revolving Credit Facility Agreement (Avaya Inc)
Representations and Warranties of the Borrower. The In order to induce the Lender to enter into this Agreement (and the Borrower acknowledges that the Lender is relying thereon), the Borrower represents and warrants as followsto the Lender that:
(a) The executionthe Borrower is a corporation duly incorporated and validly existing and in good standing under the Company Act (British Columbia) and is in good standing under the laws of the Province of British Columbia and the Borrower has the capacity and power to own and lease its assets and property, delivery to carry on its business, to execute and deliver this Agreement and the Security Instruments being executed and delivered by it, to comply with the provisions hereof and thereof and to duly perform and observe all of its obligations hereunder and thereunder and the entering into and performance and observance by the Borrower it of the Amendment such obligations has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.partnership action;
(b) The Amendment this Agreement has been duly executed and delivered by the Borrower. The Amendment Borrower and constitutes a legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its termsterms and each of the Security Instruments, except when delivered to the extent Lender, will constitute a legal, valid and binding obligation of the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles Borrower enforceable in accordance with its terms in each case subject to the qualifications as set out in the opinion of law (regardless of whether enforcement is sought in equity or counsel to the Borrower, delivered as at law) and implied covenants of good faith and fair dealing.the date hereof;
(c) No approvalthere is no law, consentdecree, exemptionregulation or similar enactment, authorizationno provision of the constating documents of the Borrower or any of any instrument, agreement or other action by, or notice to, or filing with, any Governmental Authority obligation by which the Borrower or any of its respective property, assets and undertaking is bound and no judgment, injunction or other Person order or award of any judicial, administrative, governmental or other authority or arbitrator which is necessary or required in connection with will be contravened as a result of the execution, execution and delivery of this Agreement or any of the Security Instruments or the performance by, or enforcement against, observance of any of the obligations expressed to be incurred by the Borrower of this Amendment in or pursuant hereto or thereto;
(other than (ad) as all authorizations, approvals, licenses, registrations, consents, exemptions or declarations required or otherwise appropriate in order for the Borrower to own its property and assets, carry on its business in all jurisdictions in which such property and assets are located or such business is carried on and to enter into, execute, deliver and performs and be legally bound by its obligations hereunder and under the Security Instruments have already been duly obtained or effected and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.;
(e) No Default no representation or Event warranty by the Borrower contained herein or in any of Default shall exist immediately prior the Security Instruments contains any untrue statement of material fact or omits to state a material fact necessary to make such representation and after giving effect warranty not misleading in light of the circumstances; and
(f) the Borrower has good title free and clear of all Liens to (i) this Amendment all its property and (ii) assets other than Permitted Encumbrances and is the registered, legal and beneficial owner of the Intellectual Property, except for any Credit Extension made licences granted therein in connection herewiththe ordinary course of business.
Appears in 2 contracts
Sources: Loan Agreement (Koll Thomas U), Loan Agreement (Infowave Software Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of the Amendment has Loan Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower's corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party Borrower's charter or by-laws or (ii) any order, injunction, writ or decree of any Governmental Authority law or any arbitral award to which contractual restriction binding on or affecting the Borrower or its Property is subject; Borrower.
(c) result in No consent, 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 creation due execution, delivery and performance by the Borrower of any Lien (Loan Document to which it is a party, other than Permitted Liens); or the order of the Federal Energy Regulatory Commission, dated May 12, 2005, which has been obtained and permits the transactions contemplated by the Loan Documents and remains in full force and effect.
(d) violate This Agreement has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, subject to the effect of any Law applicable to bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally.
(e) The Audited Statements of the Borrower and the AmendmentUnaudited Statements of the Borrower, exceptcopies of each of which have been furnished to each Lender, fairly present, subject in the case of clause Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition, results of operations and cash flows of the relevant Persons and entities, as at the dates and for the periods therein indicated, all in accordance with generally accepted accounting principles consistently applied as in effect on the date of such Audited Statements or Unaudited Statements, as applicable. Since December 31, 2004, there has been no Material Adverse Change, except as shall have been disclosed or contemplated in the SEC Reports.
(bf) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters disclosed or contemplated in the SEC Reports (the "Disclosed Litigation") or (dii) onlypurports to affect the legality, as would not validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status or financial effect on the Borrower or any of its Significant Subsidiaries, of the Disclosed Litigation from that disclosed or contemplated in the SEC Reports that could be reasonably be expected likely to have a Material Adverse Effect.
(bg) The Amendment operations and properties of the Borrower and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been duly executed resolved without ongoing material obligations or costs, except as disclosed or contemplated in the SEC Reports, and delivered by no circumstances exist that could be reasonably likely to (i) form the Borrower. The Amendment constitutes legal, valid and binding obligations basis of the Borrower, enforceable an Environmental Action against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary of the Significant Subsidiaries or required in connection with the executionany of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, delivery occupancy, use or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to transferability under any Environmental Law that could have a Material Adverse Effect.
(h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan.
(i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status.
(j) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(l) Except as set forth in the financial statements referred to in subsection (e) above, the Borrower and its Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106.
(m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Revolving Credit 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; and after applying the proceeds of each Revolving Credit Advance hereunder, margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) constitutes less than twenty-five percent (25%) of the value of those assets of the Borrower and its Subsidiaries which are subject to any limitation on sale or pledge, or any other restriction hereunder.
(n) Neither the Borrower nor any of its Subsidiaries is, or after the making of any Revolving Credit Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other transactions contemplated hereby, will be, an "investment company", or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company" (within the meaning of the Investment Company Act of 1940, as amended).
(do) After giving effect to this AmendmentThe Borrower is a "public utility company" and a "subsidiary company" of DTE Energy, which is a "holding company" as such terms are defined in the representations 1935 Act, and warranties contained in each such "holding company" and the Borrower are currently exempt from the provisions of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date 1935 Act (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsSection 9 thereof), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Credit Agreement (Detroit Edison Co), Five Year Credit Agreement (Detroit Edison Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with charter or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or by-laws, (ii) any order, injunction, writ or decree of law in any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); material respect or (diii) violate any Law applicable to contractual restriction binding on or affecting the Borrower and the AmendmentBorrower, except, except in the case of this clause (b) or (d) onlyiii), as would to the extent such contravention could not reasonably be expected to have result in a Material Adverse Effect.
(bc) The Amendment 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 (except for such approvals, notices or filings which are obtained on or before the Effective Date, have been disclosed in writing to the Arrangers, and remain in full force and effect) is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except to the extent as the enforceability thereof may be limited by the effect of any applicable Debtor Relief Laws bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by equitable general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingequity.
(ce) No approvalThe Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, consent2010, exemptionand the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, authorizationaccompanied by an opinion of PricewaterhouseCoopers LLC, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2011, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer, treasurer or other action bycontroller of the Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2011, 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 Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2010, there has been no Material Adverse Change as of the Effective Date.
(f) As of the Effective Date, there is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or notice toproceeding, or filing withincluding, without limitation, any Governmental Authority Environmental Action, affecting the Borrower or any other Person is necessary of its Subsidiaries before any court, governmental agency or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment arbitrator that (other than (ai) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not could be reasonably be expected likely to have a Material Adverse Effect)Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(dg) After giving effect to this Amendment, The Borrower is not engaged in the representations and warranties contained in each 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 Credit Documents are true Federal Reserve System), and correct no proceeds of any Revolving Loan 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) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) Neither the Information Memorandum nor any other written information, exhibit or report other than projections and information of a general economic or general industry nature furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in all connection with the negotiation and syndication of this Agreement or pursuant to the terms of this Agreement contained any untrue statement of a material respects on and fact or omitted to state a material fact necessary to make the statements made therein not misleading as of the date hereof as though made on and as made, in light of such date except the circumstances in which the same were made; provided, that the foregoing representations to the extent that such representations relating to the Target are, until and warranties specifically refer including the Effective Date, made only to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 best of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsBorrower’s knowledge.
(ej) No Default or Event of Default shall exist immediately prior to The Borrower on a consolidated basis, before and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithapplicable Borrowing hereunder, is Solvent.
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (Dentsply International Inc /De/), 364 Day Revolving Credit Agreement (Dentsply International Inc /De/)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The execution, delivery and performance by Each of the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of its Subsidiaries (i) any Contractual Obligation is duly organized, validly existing and (to which the Borrower is party extent applicable) in good standing under the laws of its jurisdiction of incorporation or organization, (ii) any orderis duly qualified to do business and (to the extent applicable) in good standing in each jurisdiction where, injunctionbecause of the nature of its activities or properties, writ or decree of any Governmental Authority or any arbitral award such qualification is required except where the failure to which qualify would not have a Material Adverse Effect, (iii) has the Borrower or requisite corporate power and authority and the right to own and operate its Property is subject; properties, to lease the property it operates under lease, and to conduct its business as now and proposed to be conducted, and (civ) result except as disclosed in the creation of any Lien (other than Permitted Liens); Registration Statement, has obtained all material licenses, permits, consents or (d) violate any Law applicable approvals from or by, and has made all filings with, and given all notices to, all governmental authorities having jurisdiction, to the Borrower extent required for such ownership, operation and conduct (including, without limitation, the Amendmentconsummation of the transactions contemplated by this Agreement) as to each of the foregoing, except, in except where the case of clause (b) or (d) only, as failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment execution, delivery and performance by the Borrower of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Borrower's charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Borrower.
(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 Borrower of this Agreement or the Notes to be delivered by it, except for those authorizations, approvals, actions, notices and filings that have been duly obtained, taken, given or made and are in full force and effect.
(d) This Agreement has been been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except subject to (i) the extent the enforceability thereof may be limited by effect of any applicable Debtor Relief Laws bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ ' rights generally and by equitable generally, (ii) the effect of general principles of law equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law) and implied covenants of good faith and fair dealing.
(ce) No approvalThe Consolidated pro forma balance sheet of the Borrower and its Subsidiaries as at April 24, consent2002, exemptioncopies of which have been furnished to each Lender, authorizationfairly present the pro forma Consolidated financial condition of the Borrower and its Subsidiaries as at such date, giving effect to the transactions contemplated hereby, all in accordance with generally accepted accounting principles consistently applied. Since April 24, 2002, there has been no Material Adverse Change.
(f) The description of the Quoted Share Retrocession Agreements (as defined in the Registration Statement) as set forth in the Registration Statement is not misleading in any material respect.
(g) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or other action byproceeding, or notice toincluding, or filing withwithout limitation, any Governmental Authority Environmental Action, affecting the Borrower or any other Person is necessary of its Subsidiaries before any court, governmental agency or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment arbitrator that (other than (ai) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not could be reasonably be expected likely to have a Material Adverse Effect)Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(dh) After giving effect to this Amendment, The Borrower is not engaged in the representations and warranties contained in each 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 Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsFederal Reserve System), and except that no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the representations and warranties contained in Section 6.05 purpose of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementspurchasing or carrying any margin stock.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithThe Borrower is not an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Platinum Underwriters Holdings LTD), Credit Agreement (Platinum Underwriters Holdings LTD)
Representations and Warranties of the Borrower. The In order to induce the Lenders and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto the Lenders and Administrative Agent that the following statements are true, correct and complete:
(ai) The the execution, delivery and performance of this Amendment No. 1 and the Credit Agreement as amended by this Amendment No. 1 (the Borrower of “Amended Agreement”, and together with this Amendment No. 1, the “Amendment has Documents”) are within the Borrower’s partnership powers and have been duly authorized by all necessary corporate partnership or other organizational action on the part of the Borrower;
(ii) the execution, delivery and does not performance of this Amendment No. 1
(a) contravene do 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 and except for such filings as may be required with the terms of the Borrower’s Organization Documents; SEC to comply with disclosure obligations, (b) conflict with will not violate any applicable law or result in any breach regulation or contravention the charter, by-laws or other organizational documents of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ of its Subsidiaries or decree the Parent Companies or any order of any Governmental Authority or Authority, except for any arbitral award to which the Borrower or its Property is subject; (c) result in the creation violation of any Lien (other than Permitted Liens); applicable law or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as regulation that would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approvalwill not violate or result in a default under any indenture, consent, exemption, authorizationagreement or other instrument binding upon the Borrower or any of its Subsidiaries or the Parent Companies or their assets, or other action by, or notice to, or filing with, give rise to a right thereunder to require any Governmental Authority payment to be made by the Borrower or any other Person is necessary of its Subsidiaries or required in connection with the executionParent Companies, delivery except for any violation or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which default that would not reasonably be expected to have a Material Adverse Effect).
, and (d) After giving effect will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries or the Parent Companies;
(iii) each of the Amendment Documents has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms, subject to this Amendmentapplicable 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;
(iv) the representations and warranties contained made or deemed made by the Borrower in each of the Credit Documents any Loan Document are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date hereof as though made on and as of such date Amendment Effective Date (except to the extent that any such representations representation and warranties specifically refer warranty expressly relates to an earlier date, in which case they such representation and warranty shall be true and correct in all material respects on and (or, in the case of any such representation or warranty already qualified by materiality, in all respects) as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsdate), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.; and
(ev) No no Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) is continuing or will result from the consummation of the transactions contemplated by this Amendment and (ii) any Credit Extension made in connection herewithNo. 1.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Brixmor Operating Partnership LP), Term Loan Agreement (Brixmor Operating Partnership LP)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) Each Loan Party is validly organized and existing and in good standing under the laws of the state of its organization, is duly qualified to do business and in good standing as a foreign corporation in each jurisdiction where the nature of its business makes such qualification necessary and where the failure to so qualify would reasonably be expected to have a Materially Adverse Effect and has full power and authority to own and hold under lease its property and conduct its business substantially as presently conducted by it. Each Loan Party has full power and authority to enter into and to perform its obligations under this Amendment and the Credit Agreement and each other Loan Document to which each is a party, as amended hereby, and to obtain the Advances under the Credit Agreement, as amended hereby, in the case of the Borrower.
(b) The executionexecution and delivery by each Loan Party of this Amendment and the Credit Agreement and each Loan Document executed by it, delivery as amended hereby, and the performance by each of its respective obligations thereunder and the borrowings under the Credit Agreement, as amended hereby, by the Borrower of the Amendment has have been duly authorized by all necessary corporate or other organizational action corporate, partnership and does limited liability company action, as the case may be, do not (a) contravene the terms of the Borrower’s Organization Documents; (b) require any Approval, do not and will not conflict with or with, result in any breach violation of, or contravention constitute any default under, any provision of any Organic Document or material Contractual Obligation of such Loan Party (ior any other material Contractual Obligation) or any present law or governmental regulation or court decree or order applicable to any Loan Party and will not result in or require the creation or imposition of any Lien in any of their respective properties pursuant to the provisions of any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; Obligation.
(c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower This Amendment and the Amendment, except, in the case of clause (b) or (d) onlyCredit Agreement, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly amended hereby, is, and each Loan Document executed by any Loan Party will on the due execution and delivered by delivery thereof be, the Borrower. The Amendment constitutes legal, valid and binding obligations obligation of the Borrower, such Loan Party enforceable against the Borrower in accordance with its terms, except subject, as to enforcement, only to bankruptcy, insolvency, reorganization, moratorium or other similar laws at the extent time in effect affecting the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ of the rights generally of creditors generally, and by general equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)principles.
(d) After giving effect There is no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (ii) purports to affect the legality, validity or enforceability of this Amendment, the representations and warranties contained in each Collateral Agreements or any of the Credit Documents are true and correct in all material respects on and other Loan Documents, as amended hereby, or the consummation of any of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementstransactions contemplated hereby.
(e) No Default The Collateral Agreements consisting of security agreements or Event mortgages to which the Loan Parties are or are to be a party, when delivered hereunder, will create valid and perfected first priority liens and security interests in and to the Collateral covered thereby, securing the payment of Default shall exist immediately prior to and after giving effect to the Secured Obligations (i) this Amendment and (ii) any Credit Extension made in connection herewitheach case, as defined in such Collateral Agreement).
Appears in 2 contracts
Sources: Loan Agreement (Consol Energy Inc), Loan Agreement (Consol Energy Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of the Amendment has Loan Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with charter or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party by-laws or (ii) law or any ordercontractual restriction binding on or affecting the Borrower.
(c) No consent, injunctionauthorization or approval or other action by, writ and no notice to or decree of filing with, any Governmental Authority or regulatory body or any arbitral award other third party is required for the due execution, delivery and performance by the Borrower of any Loan Document to which it is a party.
(d) This Agreement has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally.
(e) The Audited Statements of the Borrower, DTE Electric and DTE Gas, copies of each of which have been furnished to each Lender, fairly present, in all material respects, the Consolidated financial condition, results of operations and cash flows of the relevant Persons and entities, as at the dates and for the periods therein indicated, all in accordance with generally accepted accounting principles consistently applied as in effect on the date of such Audited Statements. Since December 31, 2019, there has been no Material Adverse Change, except as shall have been disclosed or contemplated in the SEC Reports.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Property is subject; Significant Subsidiaries before any court, governmental agency or arbitrator that (ci) result could be reasonably likely to have a Material Adverse Effect other than the matters disclosed or contemplated in the creation of any Lien SEC Reports (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b“Disclosed Litigation”) or (dii) onlypurports to affect the legality, as would not validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status or financial effect on the Borrower or any of its Significant Subsidiaries, of the Disclosed Litigation from that disclosed or contemplated in the SEC Reports that could be reasonably be expected likely to have a Material Adverse Effect.
(bg) The Amendment operations and properties of the Borrower and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been duly executed resolved without ongoing material obligations or costs, except as disclosed or contemplated in the SEC Reports, and delivered by no circumstances exist that could be reasonably likely to (i) form the Borrower. The Amendment constitutes legal, valid and binding obligations basis of the Borrower, enforceable an Environmental Action against the Borrower in accordance with its termsor any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity occupancy, use or at law) and implied covenants of good faith and fair dealingtransferability under any Environmental Law that could have a Material Adverse Effect.
(ch) No approvalERISA Event has occurred or is reasonably expected to occur with respect to any Plan.
(i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, consentcopies of which have been filed with the Internal Revenue Service, exemptionis complete and accurate and fairly presents the funding status of such Plan, authorizationand since the date of such Schedule B there has been no material adverse change in such funding status.
(i) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan and (ii) none of the Borrower and its Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of the Plan Asset Regulations), or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with and neither the execution, delivery or performance byof the transactions contemplated hereby, including the making of any Loan hereunder, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or enforcement againstSection 4975 of the Internal Revenue Code.
(k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(l) Except as set forth in the financial statements referred to in subsection (e) above, the Borrower and its Subsidiaries have no material liability with respect to “expected post retirement benefit obligations” within the meaning of this Amendment Statement of Financial Accounting Standards No. 106.
(other m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Credit Extension 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; and after applying the proceeds of each Credit Extension hereunder, margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) constitutes less than twenty-five percent (a25%) as have already been obtained of the value of those assets of the Borrower and its Subsidiaries which are in full force and effect, (b) filings subject to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizationsany limitation on sale or pledge, or any other actionsrestriction hereunder.
(n) Neither the Borrower nor any of its Subsidiaries is, notices or filings after the failure making of any Credit Extension or the application of the proceeds or repayment thereof, or the consummation of any of the other transactions contemplated hereby, will be, required to procure which would not reasonably be expected to have a Material Adverse Effectregistered as an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (within the meaning of the Investment Company Act of 1940, as amended).
(do) After giving The Borrower has implemented and maintains in effect policies and procedures designed to this Amendmentensure, the representations and warranties contained in each of the Credit Documents are true and correct its reasonable judgment, compliance in all material respects on by the Borrower, its Subsidiaries and as their respective directors, officers, employees and agents with Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of the date hereof as though made on Borrower its directors and as of such date except to the extent that such representations agents, are in compliance with Anti-Corruption Laws and warranties specifically refer to an earlier date, in which case they shall be true and correct applicable Sanctions in all material respects respects. None of (a) the Borrower, any Subsidiary of the Borrower or, to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) Neither the Borrower nor any Subsidiary of the Borrower (i) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities, or any violation under any laws or regulations relating to money laundering or terrorist financing, including the Bank ▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §§▇▇▇▇ et. seq. (the “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws, or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws.
(q) The Borrower is not an Affected Financial Institution.
(r) As of the Effective Date, the information included in the Beneficial Ownership Certification provided on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference prior to Material Adverse Effect shall be the Effective Date to any Lender in connection with this Agreement is true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (DTE Electric Co), Term Loan Credit Agreement (DTE Electric Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Lenders that, except as followsset forth on the Schedules attached to this Agreement:
(a) The executionBorrower is conducting its business in compliance in all material respects with its Organizational Documents, delivery which are in full force and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; effect.
(b) conflict with No Default or result in Event of Default has occurred under any breach or contravention of the Transaction Documents.
(c) The Borrower (i) any Contractual Obligation after the Disbursements and the consummation of the transactions contemplated by the Equity Documents will be capable of paying its debts as they fall due, and neither will be unable nor will have admitted its inability to which the Borrower is party or pay its debts as they fall due, (ii) any orderis not bankrupt and will not be insolvent and (iii) has not taken action, injunctionand no such action has been taken by a third party, writ for the winding up, dissolution, or decree liquidation of any Governmental Authority its business or any arbitral award to which similar executory or judicial proceeding or for the appointment of a liquidator, custodian, receiver, trustee, administrator or other similar officer for the Borrower or any or all of its Property assets or revenues.
(d) The obligation of the Borrower to make any payment under the Transaction Documents (together with all charges in connection therewith) is subject; (c) result in the creation absolute and unconditional, and there exists no right of setoff or recoupment, counterclaim, cross-claim or defense of any Lien nature whatsoever to any such payment.
(e) No Indebtedness of the Borrower exists other than Permitted Liens); Indebtedness.
(f) The Borrower is validly existing and in good standing under the laws of the state of Delaware. The Borrower has full power and authority to own its properties and conduct its business as now conducted and currently contemplated, and is duly qualified to do business as a foreign entity and is in good standing (or (dequivalent concept) violate any Law applicable in each jurisdiction in which the conduct of its business makes such qualification necessary and in which the failure to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not so qualify could reasonably be expected to have a Material Adverse Effect.
(bg) The Amendment has been duly executed and delivered by There is not pending or, to the Borrower. The Amendment constitutes legal, valid and binding obligations knowledge of the Borrower, enforceable against the Borrower in accordance with its termsthreatened, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approvalany action, consent, exemption, authorization, suit or other action by, or notice to, or filing with, proceeding before any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, to which the Borrower is a party or (b) filings to perfect security interests granted pursuant to which has as the Amendment and (c) approvalssubject thereof any assets owned by the Borrower, consentsand, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects except as set forth on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.Schedule 3.1
Appears in 2 contracts
Sources: Exchange Agreement and Amendment to Facility Agreement (Kempharm, Inc), Facility Agreement (Kempharm, Inc)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as followsthat:
(a) The it is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware and has the partnership power and authority and the legal right to execute and deliver, and to perform its obligations under, this Trust Agreement and has taken all necessary partnership action to authorize the execution, delivery and performance of this Trust Agreement;
(b) this Trust Agreement has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors' rights generally, general equitable principles and implied covenant of good faith and fair dealing;
(c) the execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate this Trust Agreement will not violate, result in a default under, or other organizational action and does not (a) contravene the terms give rise to any acceleration, prepayment, repurchase or redemption obligation of the Borrower’s Organization Documents; (b) conflict with Borrower or any Subsidiary which is a party to any Guarantee or Security Document as a result in any breach or contravention of (i) any Contractual Obligation to which the partnership agreement of the Borrower is party or any such Subsidiary or (ii) any orderlaw, injunction, writ rule or decree of any Governmental Authority or any arbitral award to which regulation binding on the Borrower or its Property is subject; (c) any such Subsidiary or any contractual obligation of the Borrower and will not result in in, or require, the creation or imposition of any Lien (on any of its or their respective properties or revenues pursuant to any such law, rule or regulation or contractual obligation, other than Permitted Liens)the Liens created by the Security Documents; or and
(d) violate any Law applicable to the Borrower and the Amendmentno consent or authorization of, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorizationfiling with, or other action by, act by or notice to, or filing within respect of, any Governmental Authority arbitrator or governmental authority and no consent of any other Person is necessary or required of the Borrower in connection with the execution, delivery delivery, performance, validity or performance by, or enforcement against, the Borrower enforceability of this Amendment (other than (a) as Trust Agreement, except for any of the foregoing that have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Trust Agreement (Sprint Spectrum Finance Corp), Trust Agreement (Sprint Spectrum Finance Corp)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The execution, Borrower has the power and authority and legal right to execute and deliver this Amendment and to perform its obligations hereunder and under the Credit Agreement (as modified hereby). The execution and delivery and performance by the Borrower of this Amendment and the Amendment has performance of its obligations hereunder and under the Credit Agreement (as modified hereby) have been duly authorized by all necessary proper corporate or other organizational action proceedings, and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower this Amendment and the Amendment, except, in the case of clause Credit Agreement (bas modified hereby) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes constitute legal, valid and binding obligations of the Borrower, Borrower enforceable against the Borrower in accordance with its their terms, except to the extent the as enforceability thereof may be limited by applicable Debtor Relief Laws bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally generally.
(b) Neither the execution and delivery by equitable principles the Borrower of law this Amendment, nor the consummation of the transactions contemplated herein or in the Credit Agreement (regardless as modified hereby), nor compliance with the provisions hereof or thereof will violate (i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower, (ii) the Borrower’s articles or incorporation or by-laws or (iii) the provisions of whether enforcement any indenture, instrument or agreement to which the Borrower is sought in equity a party or at law) and implied covenants is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in, or require, the creation or imposition of good faith and fair dealingany Lien in, of or on the Property of the Borrower pursuant to the terms of any such indenture, instrument or agreement.
(c) No approvalorder, consent, exemptionadjudication, approval, license, authorization, or other action validation of, or filing, recording or registration with, or exemption by, or notice toother action in respect of any governmental or public body or authority, or filing withany subdivision thereof, any Governmental Authority or any other Person which has not been obtained by the Borrower, is necessary or required to be obtained by the Borrower in connection with the execution, execution and delivery or performance by, or enforcement against, the Borrower of this Amendment or the legality, validity, binding effect or enforceability of the Credit Agreement (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effectmodified hereby).
(d) After As of the date hereof and giving effect to the terms of this Amendment, (i) there exists no Default or Unmatured Default and (ii) the representations and warranties contained in each Article V of the Credit Documents Agreement (as modified hereby) are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that any such representations and warranties specifically refer representation or warranty is stated to relate solely to an earlier date, in which case they such representation or warranty shall be have been true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsdate.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Credit Agreement (Actuant Corp), Credit Agreement (Actuant Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto and, where applicable, agrees with each of the Secured Parties, that:
(a) The executionBorrower is a limited liability company duly formed, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment has been jurisdiction named at the beginning hereof and is duly authorized by all necessary corporate or other organizational action qualified to do business, and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result is in any breach or contravention of (i) any Contractual Obligation to good standing, in every jurisdiction in which the Borrower is party or (ii) any order, injunction, writ or decree nature of any Governmental Authority or any arbitral award its business requires it to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower be so qualified and the Amendment, except, in the case of clause (b) or (d) only, as would not failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has execution, delivery and performance by the Borrower of this Agreement, the Contribution Agreement and all other Facility Documents to be entered into by it, including the Borrower’s use of the proceeds of Advances and remittances of Collections, are within the Borrower’s limited liability company powers, have been duly authorized by all necessary limited liability company action, do not contravene (i) the Borrower’s certificate of formation or limited liability company agreement, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any contractual restriction binding on or affecting the Borrower or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than Permitted Liens and liens in favor of the Administrative Agent for the benefit of the Secured Parties with respect to the Collateral), and no transaction contemplated hereby or by the Contribution Agreement requires compliance with any bulk sales act or similar law. This Agreement, the Contribution Agreement and each other Facility Document to be entered into by the Borrower have each been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, authorization or approval or other action by, or and no notice to, to or filing with, any Governmental Authority governmental authority or any other Person regulatory body is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment Agreement, the Contribution Agreement or any other Facility Document to be entered into by it, except for (other than i) the filing of UCC financing statements, all of which financing statements have been duly filed and, to the Borrower’s knowledge, are in full force and effect, and (aii) such as have already been obtained and are in full force and effect.
(d) This Agreement, the Contribution Agreement and each other Facility Document to be entered into by the Borrower constitute the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(i) The Borrower has furnished to the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended;
(ii) Since December 31, 2011, (bA) filings no material adverse change has occurred in the business, assets, liabilities, financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect; and
(iii) The opening pro forma balance sheet of the Borrower as at March 21, 2012, giving effect to the initial Advance to be made under this Agreement, a copy of which has been furnished to the Administrative Agent, present fairly in all material respects in accordance with GAAP the financial position of the Borrower as at such date, and since January 23, 2012 no material adverse change has occurred in the business, assets, liabilities, financial condition or results of operations of the Borrower.
(f) There is no pending or, to the Borrower’s knowledge, threatened action or proceeding affecting the Borrower before any court, governmental agency or arbitrator other than such actions and proceedings that the Collection Agent certifies to the Administrative Agent are, in the best judgment of the Collection Agent, without legal merit as related to the Borrower and are being contested in good faith. The Borrower is not in default with respect to any order of any court, arbitrator or Governmental Entity, except in any Immaterial Respect.
(g) No proceeds of any Advance will be used by the Borrower (i) to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended, or (ii) for any purpose other than to indirectly fund a purchase of Receivables and related assets from an Originator and to make payments expressly contemplated under Section 3.1 of the Borrower’s operating agreement.
(h) Each Receivable, together with the Contract related thereto, shall, at all times, be owned by the Borrower free and clear of any Lien (other than Permitted Liens), and the Administrative Agent shall have a valid and perfected first priority security interest in the property of the Borrower consisting of each Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Lien (other than Permitted Liens); provided that the Borrower (acting directly or through the Collection Agent) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of the Borrower or the Collection Agent; provided further that the Borrower (acting through the Collection Agent) shall have the time period specified in Section 5.02(k) to remove and terminate the ▇▇▇ County Lien. No effective financing statement or other instrument similar in effect with the Borrower as debtor, covering any Receivable or the Related Security or Collections with respect thereto shall at any time be on file in any recording office except such as may be filed in favor of the Administrative Agent relating to this Agreement; provided that the Borrower (acting directly or through the Collection Agent) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of the Borrower or the Collection Agent; provided further that the Borrower (acting through the Collection Agent) shall have the time period specified in Section 5.02(k) to remove and terminate the ▇▇▇ County Lien. The contributions of the Receivables and related assets to the Borrower by the Transferor under the Contribution Agreement constitute valid and “true contributions” and transfers for consideration (and not merely a pledge of such Receivables and assets for security purposes), enforceable against creditors of the Transferor, and no such Receivables or related assets shall constitute property of Transferor. The purchases of the Receivables and related assets by Buyer from each Originator under the Sale Agreement constitute valid and true sales and transfers for consideration (and not merely a pledge of such Receivables and assets for security purposes), enforceable against creditors of the Transferor and such Originator, and no such Receivables or related assets shall constitute property of the Transferor or such Originator.
(i) As of the close of business on each Business Day prior to the Termination Date, a Borrowing Base Deficiency shall not exist.
(j) No Monthly Report or Funding Request (if prepared by the Borrower, the Collection Agent or any Affiliate thereof, or to the extent that information contained therein is supplied by the Borrower, the Collection Agent or such Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished by the Borrower to the Administrative Agent or any Managing Agent in connection with this Agreement is or will be inaccurate in any material respect as of the date it is or shall be dated or (except as otherwise disclosed to the Administrative Agent and the Managing Agents, as the case may be, at such time) as of the date so furnished or dated, and no such document contains or will contain any material misstatement of fact or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Borrower represents only that it acted in good faith and utilized assumptions that the Borrower believed to be reasonable at the time made.
(k) The principal place of business and chief executive office of the Borrower and the office where the Borrower keeps all of its Records are located at the address or addresses of the Borrower referred to in Section 10.02 hereof (or at such other locations as to which the notice and other requirements specified in Section 6.08 shall have been satisfied). The Borrower is located in the jurisdiction of organization named at the beginning hereof for purposes of Section 9-307 of the UCC as in effect in the State of New York, and the office in the jurisdiction of organization of the Borrower in which a UCC financing statement is required to be filed in order to perfect the security interest granted by the Borrower hereunder is Secretary of State of the State of Delaware. The Borrower’s organizational identification number is 5099211.
(l) The Borrower has no trade names, fictitious names, assumed names or “doing business as” names or other names under which it has done or is doing business.
(m) The Contribution Agreement is the only agreement pursuant to which the Borrower acquires Receivables, the Borrower has furnished to the Administrative Agent a true, correct and complete copy of the Contribution Agreement and the Sale Agreement, and the Contribution Agreement and the Sale Agreement are in full force and effect and no “Event of Termination” under the Contribution Agreement or the Sale Agreement or event or circumstance that would with the passage of time or the giving of notice (or both) constitute an “Event of Termination” under the Contribution Agreement or the Sale Agreement.
(n) The Borrower was formed on January 23, 2012, and the Borrower did not engage in any business activities prior to the date of this Agreement. The Borrower has no subsidiaries.
(o) The Borrower shall have given reasonably equivalent value to the Transferor in consideration for the transfer by the Transferor to the Borrower of the Receivables and Related Security under the Contribution Agreement, no such transfer shall have been made for or on account of an antecedent debt owed by the Transferor to the Borrower, and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Law.
(p) A copy of the Certificate of Formation of the Borrower as in effect on the date of this Agreement has been provided to the Administrative Agent.
(q) The Borrower is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) at the time of (and immediately after) each transfer of Receivables to the Borrower under the Contribution Agreement, and at the time of (and immediately after) each Advance and remittance of Collections hereunder, the Borrower shall not have been an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the Bankruptcy Law. The Borrower has entered into this Agreement for the purpose of indirectly financing its acquisition of Receivables and Related Security from the Originators, and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against the Borrower or for any other purpose relating in any way to the claims of creditors or others against the Borrower.
(r) The Borrower accounts for the transfers to it from the Transferor of interests granted in Receivables, Related Security and Collections under the Contribution Agreement as “true” capital contributions and legal sales of such Receivables, Related Security and Collections in its books, records and financial statements, in each case consistent with GAAP and with the requirements set forth herein.
(s) The sole and exclusive business of the Borrower is the acquisition of Receivables and Related Security pursuant to the Amendment Contribution Agreement for its own account, the borrowing of money pursuant to the terms of this Agreement, and making operational cost payments expressly contemplated under Section 3.1 of the Borrower’s operating agreement.
(ct) approvalsThe Borrower is operated as an entity with assets and liabilities distinct from those of the Transferor, consentseach Originator and any Affiliates thereof, exemptionsand the Borrower hereby acknowledges that the Administrative Agent, authorizationsthe Managing Agents and each Lender are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a separate legal entity from, the Transferor, each Originator and from each such other Affiliate.
(u) The Borrower is not an “investment company” or a company controlled by an “investment company” registered or required to be registered under the Investment Company Act.
(v) The Borrower is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the securities Exchange Act of 1934, as amended). No part of the proceeds of any Receivable has been used for so purchasing or carrying margin stock or for any purpose which violates, or other actions, notices or filings the failure to procure which would be inconsistent with, the provisions of Regulation T, U or X.
(w) The Borrower and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Transferor, the Collection Agent and/or any Originator to account for the Collateral to the extent necessary to administer the Collateral, and, in the case of the Borrower and the Collection Agent, to assign (by way of sale or collateral pledge) or sublicense such rights to use all of such software to the Administrative Agent.
(x) The Borrower has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, the validity of which are being contested in good faith by appropriate proceedings and with respect to which the Borrower has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP.
(y) Except as could not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect result in material liability to this Amendmentthe Borrower, the representations and warranties contained in each of the Credit Documents are true Borrower and correct its ERISA Affiliates is in compliance in all material respects on with the applicable provisions of ERISA and as of the date hereof as though made on Code and as of such date except to the extent that such representations regulations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality published interpretations thereunder. No ERISA Event has occurred or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.is reasonably expected to
Appears in 2 contracts
Sources: Omnibus Amendment (Community Health Systems Inc), Omnibus Amendment (Community Health Systems Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Lenders and the Agent that each of the following matters is true and correct as followsof the execution date of this Agreement and the Drawdown Date. If it is found out that any of the representations and warranties is not true at any later date, then the Borrower will immediately notify the Lenders and the Agent of such effect in writing and bear any and all Damages, Etc. incurred by the Lenders or the Agent arising therefrom:
(ai) The execution, delivery and performance by the Borrower is a stock company (kabushiki-kaisha) duly incorporated and validly existing under the laws of Japan;
(ii) the Borrower falls under none of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not provisions stipulated from (a) contravene to (i) in Schedule 5 (i) and has none of relationships stipulated from (a) to (e) in Schedule 5 (ii).
(iii) the terms Borrower has all necessary and complete legal power and right to execute and perform this Agreement, and the execution and performance of this Agreement, and the transactions hereunder, are within the corporate purposes of the Borrower’s Organization Documents; , and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the Articles of Incorporation and other internal company rules of the Borrower;
(iv) the execution and performance of this Agreement, and the transactions hereunder, do not violate (a) any Laws and Ordinances which bind the Borrower, (b) conflict with or result in any breach or contravention the Articles of Incorporation and other internal company rules of the Borrower, and (ic) any Contractual Obligation third-party contract to which the Borrower is a party or which binds the Borrower;
(iiv) any order, injunction, writ the person who signed or decree attached his/her name and seal to this Agreement on behalf of any Governmental Authority or any arbitral award to which the Borrower is authorized to sign or its Property is subject; (c) result in attach his/her name and seal to this Agreement as the creation representative of any Lien (other than Permitted Liens); or (d) violate any Law applicable the Borrower by all procedures necessary pursuant to the Borrower Laws and Ordinances, the Amendment, except, in Articles of Incorporation or other internal company rules of the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.Borrower;
(bvi) The Amendment has been duly executed and delivered by the Borrower. The Amendment this Agreement constitutes legal, valid and binding obligations of the Borrower, and is enforceable against the Borrower it in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.;
Appears in 2 contracts
Sources: Syndicated Loan Agreement (Amkor Technology, Inc.), Syndicated Loan Agreement
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio. Each Guarantor 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 the Borrower of this Amendment and the Amendment has Loan Documents, as amended hereby, to which it is or is to be a party are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with charter, regulations or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party by-laws, as applicable, or (ii) any order, injunction, writ or decree of any Governmental Authority law or any arbitral award to which contractual restriction binding on or affecting the Borrower or its Property is subject; Borrower.
(c) result in 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 creation due execution, delivery or performance by the Borrower of this Amendment or any Lien (other than Permitted Liens); of the Loan Documents, as amended hereby, to which it is or is to be a party.
(d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The This Amendment has been duly executed and delivered by the Borrower. The This Amendment constitutes and each of the other Loan Documents, as amended hereby, to which the Borrower is a party are legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its their respective terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(ce) No approvalThere is no pending or threatened action, consentsuit, exemptioninvestigation, authorization, litigation or other action by, or notice to, or filing with, any Governmental Authority proceeding affecting the Borrower or any other Person is necessary of its Subsidiaries before any court, governmental agency or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment arbitrator that (other than (ai) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not could be reasonably be expected likely to have a Material Adverse Effect).
Effect (dother than the Disclosed Litigation) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) purports to affect the legality, validity or enforceability of this Amendment or any Credit Extension made in connection herewithof the other Loan Documents, as amended hereby.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Kroger Co), Five Year Credit Agreement (Kroger Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Receipt to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with charter or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or by-laws, (ii) any order, injunction, writ or decree of law in any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); material respect or (diii) violate any Law applicable to contractual restriction binding on or affecting the Borrower and the AmendmentBorrower, except, except in the case of this clause (b) or (d) onlyiii), as would to the extent such contravention could not reasonably be expected to have result in a Material Adverse Effect.
(bc) The Amendment 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 (except for such approvals, notices or filings which are obtained on or before the Effective Date, have been disclosed in writing to the Arranger, and remain in full force and effect) is required for the due execution, delivery and performance by the Borrower of this Agreement or the Receipt to be delivered by it.
(d) This Agreement has been been, and the Receipt to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and the Receipt when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except to the extent as the enforceability thereof may be limited by the effect of any applicable Debtor Relief Laws bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by equitable general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingequity.
(ce) No approvalThe Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, consent2013, exemptionand the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, authorizationaccompanied by an opinion of PricewaterhouseCoopers LLC, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2014, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer, treasurer or other action bycontroller of the Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at March 31, 2014, 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 Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2013, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or notice toproceeding, or filing withincluding, without limitation, any Governmental Authority Environmental Action, affecting the Borrower or any other Person is necessary of its Subsidiaries before any court, governmental agency or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment arbitrator that (other than (ai) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not could be reasonably be expected likely to have a Material Adverse Effect)Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or the Receipt or the consummation of the transactions contemplated hereby.
(dg) After giving effect to this Amendment, The Borrower is not engaged in the representations and warranties contained in each 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 Credit Documents are true Federal Reserve System), and correct no proceeds of any Loan 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. No part of the proceeds of any Loan have been used or will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof.
(h) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) Neither the Information Memorandum nor any other written information, exhibit or report other than projections and information of a general economic or general industry nature furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in all connection with the negotiation and syndication of this Agreement or pursuant to the terms of this Agreement contained any untrue statement of a material respects on and fact or omitted to state a material fact necessary to make the statements made therein not misleading as of the date hereof as though made on and as made, in light of such date except the circumstances in which the same were made; provided, that the foregoing representations to the extent that such representations relating to Astra Tech are, until and warranties specifically refer including the Effective Date, made only to an earlier datethe best of the Borrower’s knowledge.
(j) The Borrower is Solvent on a consolidated basis.
(k) The Borrower has implemented and maintains in effect policies and procedures reasonably designed to promote and achieve compliance by the Borrower and its Subsidiaries with Anti-Corruption Laws and applicable Sanctions, and the Borrower and its Subsidiaries, are in which case they shall be true compliance with Anti-Corruption Laws and correct applicable Sanctions in all material respects on and as respects. None of (a) the Borrower, any Subsidiary or to the knowledge of the Borrower or such earlier date Subsidiary any of their respective directors or officers, or (provided b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that representations and warranties that are qualified by materiality will act in any capacity in connection with or reference to Material Adverse Effect shall be true and correct in all respectsbenefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or other Transactions will violate Anti-Corruption Laws or applicable Sanctions. For purposes of this Section 3.01(k), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement word “knowledge” shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) mean actual knowledge (and (bnot imputed or constructive knowledge) of an officer or director of the Credit Agreement and to the date of such financial statementsBorrower or any Subsidiary, as applicable.
(el) No Default The respective obligations of the Borrower under this Agreement rank, and shall continue to rank, at least pari passu in respect of priority of payment and in all other respects with all other unsecured and unsubordinated Debt of the Borrower, except as otherwise provided by applicable laws of bankruptcy, insolvency, liquidation or Event similar laws of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithgeneral application.
Appears in 2 contracts
Sources: Loan Agreement (Dentsply International Inc /De/), Loan Agreement (Dentsply International Inc /De/)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes to be delivered by it (if any), and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action and does not (a) contravene on the terms part of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of , and do not contravene (i) any Contractual Obligation to which the Borrower is party Borrower’s charter or bylaws or (ii) any order, injunction, writ or decree of any Governmental Authority law or any arbitral award to which material contractual restriction binding on the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the AmendmentBorrower, except, in the case of this clause (b) ii), where such violations or (d) only, as contraventions would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, authorization or approval or other action by, or and no notice to, to or filing with, any Governmental Authority governmental authority or any other Person regulatory body is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment Agreement or the Notes to be delivered by it (other than if any) except (ai) as those that have already been obtained and are in full force and effectobtained, filed or made or (bii) filings where the Borrower’s failure to perfect security interests granted pursuant to the Amendment and (c) receive, take or make such authorizations, approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this AmendmentThis Agreement has been, the representations and warranties contained in each of the Credit Documents are true Notes to be delivered by it (if any) when delivered hereunder will have been, duly executed and correct in all material respects on delivered by the Borrower. This Agreement is, and as each of the date hereof as though made on Notes (if any) when delivered hereunder will be, the legal, valid and as binding obligation of such date the Borrower enforceable against the Borrower in accordance with their respective terms except to the extent that such representations the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium and warranties specifically refer other laws affecting creditors’ rights generally and by equitable principles (regardless of whether enforcement in sought in equity or at law).
(i) The Consolidated balance sheet of the Borrower and its Subsidiaries as at January 31, 2025, and the related Consolidated statements of operations and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of ▇▇▇▇▇ & ▇▇▇▇▇ LLP, independent public accountants, copies of which have been made available to an earlier dateeach Lender, in which case they shall be true and correct fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on and as such date, all in accordance with generally accepted accounting principles consistently applied.
(i) Since January 31, 2025, there has been no Material Adverse Change.
(f) There is no pending or, to the Borrower’s knowledge, threatened in writing, action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, against the Borrower or any of such earlier date its Subsidiaries before any court, governmental agency or arbitrator that (provided that representations and warranties that are qualified by materiality or reference i) could reasonably be expected to have a Material Adverse Effect shall or (ii) could reasonably be true and correct expected to adversely affect the legality, validity or enforceability of the Loan Documents.
(g) The Borrower is not engaged in all respectsthe 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 except that no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the representations purpose of purchasing or carrying any margin stock.
(h) The Borrower is not required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(i) No written information, exhibit or report furnished by or on behalf of the Borrower to the Agent or any Lender in connection with the negotiation of this Agreement (other than Projections (as defined below), budgets, estimates and warranties other forward-looking information or information of a general economic or industry nature), when taken together with the Borrower’s filings with the Securities and Exchange Commission, contained when furnished any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading. Any projections or pro forma financial information contained in Section 6.05 such information, exhibits or reports (the “Projections”) are based upon good faith estimates and assumptions believed by the Borrower to be reasonable at the time made, it being recognized by the Agent and the Lenders that such projections and pro forma information are not to be viewed as facts and that actual results during the period or periods covered thereby may differ from the projected or pro forma results (it being understood that forecasts and projections by their nature involve approximations and uncertainties).
(j) The Borrower has implemented and maintains in effect policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and any agent of the Credit Agreement shall be deemed to refer Borrower or any Subsidiary that acts in any capacity in connection with, or benefits from, the credit facility established hereby with Anti-Corruption Laws and applicable Sanctions, and the Borrower and its Subsidiaries, and to the most recent financial statements furnished pursuant to Section 7.01(aknowledge of the Borrower, its officers, employees, directors and any agent of the Borrower or any Subsidiary that acts in any capacity in connection with, or benefits from, the credit facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) and the Borrower, any Subsidiary or any of their respective directors, officers or employees, or (b) to the knowledge of the Credit Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or other transaction contemplated by this Agreement and to the date of such financial statementswill violate Anti-Corruption Laws or applicable Sanctions.
(ek) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithThe Borrower is not an Affected Financial Institution.
Appears in 2 contracts
Sources: Credit Agreement (Autodesk, Inc.), Credit Agreement (Autodesk, Inc.)
Representations and Warranties of the Borrower. The To induce the Lender to enter into this Amended and Restated Loan Agreement, the Borrower hereby represents and warrants to the Lender as follows:, which representations and warranties shall survive the execution and delivery of this Amended and Restated Loan Agreement and the provision of the funds until the termination of this Amended and Restated Loan Agreement pursuant to Section 7.1 hereof, notwithstanding any investigations or examinations which may be made by the Lender, and the Lender shall be deemed to have relied on such representations and warranties in the provision of the funds, effective as of the date of this Amended and Restated Loan Agreement.
(a) 4.1 The Borrower is a corporation duly incorporated and validly subsisting under the laws of Canada and has the corporate power and authority to enter into and perform its obligations under the Amended and Restated Loan Agreement and has all necessary approvals to authorize the execution of the Amended and Restated Loan Agreement on behalf of the Borrower.
4.2 The execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action Amended and does not (a) contravene Restated Loan Agreement and the terms consummation of the Borrower’s Organization Documents; (b) transactions contemplated hereby and thereby do not and will not conflict with or with, result in any breach or contravention of (i) any Contractual Obligation to which violation of, or constitute a default under the Borrower is party constating documents or (ii) any orderby-laws of, injunction, writ or decree of any Governmental Authority or any arbitral applicable laws, determination or award to which the Borrower or its Property is subject; (c) result presently in the creation of any Lien (other than Permitted Liens); or (d) violate any Law effect and applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse EffectBorrower.
(b) The Amendment has been duly 4.3 When executed and delivered by delivered, the Borrower. The Amendment constitutes legal, Amended and Restated Loan Agreement will constitute valid and legally binding obligations of the Borrower, enforceable against the Borrower in accordance with its their respective terms, except subject, however, to the extent the enforceability thereof may be limited limitations with respect to enforcement imposed by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery bankruptcy or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained similar proceedings and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that equitable remedies such representations as specific performance and warranties specifically refer to an earlier date, injunction are in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 discretion of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementscourt from which they are sought.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto DEQ that:
(a1) The execution, delivery It is a duly formed and performance by the Borrower of the Amendment existing public agency (as defined in ORS 468.423(2)) and has full power and authority to enter into this Loan Agreement.
(2) This Agreement has been duly authorized and executed and delivered by all necessary corporate an authorized officer of the Borrower and constitutes the legal, valid and binding obligation of the Borrower enforceable in accordance with its terms.
(3) All acts, conditions and things required to exist, happen and be performed precedent to and in the issuance of this Agreement have existed, have happened, and have been performed in due time, form and manner as required by law.
(4) Neither the execution of this Loan Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with any of the terms and conditions of this Loan Agreement will violate any provision of law, or any order of any court or other organizational action and does not (a) contravene the terms agency of the Borrower’s Organization Documents; (b) conflict with government, or result in any breach agreement or contravention of (i) any Contractual Obligation other instrument to which the Borrower is now a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to by which the Borrower or any of its Property properties or assets is subject; (c) bound. Nor will this Loan Agreement be in conflict with, result in a breach of, or constitute a default under, any such agreement or other instrument, or, except as provided hereunder, result in the creation or imposition of any Lien (other than Permitted Liens); lien, charge or (d) violate encumbrance of any Law applicable to nature whatsoever upon any of the Borrower and property or assets of the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse EffectBorrower.
(b5) The Amendment has been duly executed and delivered by the BorrowerThis Loan Agreement does not create any unconstitutional indebtedness. The Amendment constitutes legal, valid and binding obligations Loan Amount together with all of the Borrower’s other obligations does not, enforceable against and will
(6) The Project is a project which the Borrower in accordance with its terms, except may undertake pursuant to Oregon law and for which the extent the enforceability thereof may be limited Borrower is authorized by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingto borrow money.
(c7) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is The Borrower has full legal right and authority and all necessary or licenses and permits required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on to own, operate and as of such date except maintain the Facility and the Project, other than licenses and permits relating to the extent that such representations Facility or the Project which the Borrower expects to and warranties specifically refer shall receive in the ordinary course of business, to an earlier datecarry on its activities relating thereto, in to execute and deliver this Agreement, to undertake and complete the Project, and to carry out and consummate all transactions contemplated by this Agreement.
(8) The information contained herein which case they shall be was provided by the Borrower is true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct accurate in all respects), and except there is no material adverse information relating to the Project or the Loan, known to the Borrower, that has not been disclosed in writing to DEQ.
(9) No litigation exists or has been threatened that would cast doubt on the representations and warranties contained in Section 6.05 enforceability of the Credit Agreement shall be deemed Borrower's obligations under this Loan Agreement.
(10) The estimated Completion Date of the Project is January 31, 2017. The Borrower agrees to refer complete the Project by the estimated Completion Date.
(11) The estimated total Costs of the Project are $13,620,000.
(12) The Borrower is in compliance with all laws, ordinances, and governmental rules and regulations to which it is subject, the most recent failure to comply with which would materially adversely affect the ability of the Borrower to conduct its activities or undertake or complete the Project or the condition (financial statements furnished pursuant to Section 7.01(a) and (bor otherwise) of the Credit Agreement and to Borrower or the date of such financial statementsProject.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Clean Water State Revolving Fund Loan Agreement, Clean Water State Revolving Fund Loan Agreement
Representations and Warranties of the Borrower. The In order to induce the Bank to make the Loans, the Borrower represents makes the following representations, warranties and warrants as followspromises:
(a) 3.1 The execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate Loan Documents are not in contravention of law or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with other documents, agreements or result in any breach or contravention of (i) any Contractual Obligation undertakings to which the Borrower is a party or (ii) any order, injunction, writ or decree by which such party is bound. No approval of any Governmental Authority person, corporation, governmental body or other entity not provided herewith is a prerequisite to the execution, delivery and performance of the Loan Documents or any arbitral award to which of the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable documents submitted to the Borrower and Bank in connection with the AmendmentLoans, except, in or to insure the case of clause (b) validity or (d) only, as would not reasonably be expected to have a Material Adverse Effectenforceability thereof.
(b) The Amendment has been duly 3.2 When executed and delivered by the Borrower. The Amendment constitutes legal, valid and the Loan Documents will constitute the legally binding obligations of the Borrower, enforceable against the Borrower in accordance with its their terms, except to as the extent the enforceability thereof same may be limited by bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors' rights generally.
3.3 The construction of the Improvements upon the Premises and the use and operation of the Improvements and the Premises does and will comply with all applicable Debtor Relief Laws affecting creditors’ rights federal, state and local land use, environmental and other statutes, laws and regulations and the Project has received and will receive all necessary Permits.
3.4 Subject to any limitations stated therein or in connection therewith, the Financial Statements, all earning statements, projections, budgets and pro formas, cost certification documents, disbursement requests, invoices, loan applications, mechanics' lien affidavits, financial data and all other documents which have been or shall hereafter be furnished to the Bank to induce it to enter into this Agreement or to continue to perform and to make disbursements hereunder, do to the best of their knowledge and belief, or will, fairly represent the financial condition of the Borrower and are, or will be, accurate, true and complete in all material respects.
3.5 The Financial Statements have been prepared in accordance with generally accepted accounting principles, consistently applied, and fairly and completely set forth the financial position of the Borrower as of their respective dates. Except as previously disclosed in writing to the Bank, since the date of the Financial Statements, there has been no significant assignment of assets or material change or threatened change in the financial condition, operation or business prospects of the Borrower.
3.6 There is not now pending against the Borrower, nor is there threatened, any litigation, investigation, eminent domain or any proceedings before any court or administrative or governmental agency, the outcome of which might adversely affect the financial condition or the continued operation of the Borrower or the development or operation of the Premises and Improvements other than those listed in Schedule 3.6. There exists no unrepaired casualty with respect to the Project.
3.7 The Borrower is the owner of the Premises, in fee simple, and there are no liens or encumbrances which will be prior to the respective liens of the Mortgage and other Loan Documents, except for those acceptable to the Bank as shown on the commitment for title insurance. The liens, security interests and assignments created by equitable principles the Loan Documents will, when granted, be valid, effective, properly perfected and enforceable liens, security interests and assignments.
3.8 To the Borrower's knowledge, the Premises have not been used for the generation, treatment, storage or transportation of law (regardless "hazardous waste", as that term is defined under applicable federal and state law. In the event that the Borrower becomes aware of whether the presence of any such substance on the Premises or the Borrower becomes aware of the commencement of any state, federal, local or private environmental or land use investigation or enforcement is sought proceeding or threat thereof, the Borrower will immediately provide written notice thereof to the Bank.
3.9 To the Borrower's knowledge, the are no underground fuel storage tanks located on the Premises.
3.10 The Premises are not located in equity a Flood Hazard Zone, so-called, or if they are so located, the Borrower will procure flood insurance and will deliver certificates for such insurance at closing.
3.11 All utility services necessary for the use and operation of the Project are available on or at law) the boundary of the Premises or by unencumbered easement and implied covenants have sufficient capacity for the use and operation of good faith and fair dealingthe Project.
(c) 3.12 Any borrowings or payments made by the Borrower pursuant to the Loan Agreement do not and will not render the Borrower insolvent, the Borrower is not contemplating either the filing of a petition under any state or federal bankruptcy or insolvency laws or the liquidating of all or a major portion of its property, and the Borrower has no knowledge of any person contemplating the filing of any such petition against it, including the properties and assets reflected in its financial statement referred to herein.
3.13 No approval, consent, exemption, authorizationstatement of fact made by or on behalf of the Borrower in this Agreement, or other action byin any certificate or schedule furnished to the Bank pursuant hereto, contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein or herein not misleading. There is no fact presently known to the Borrower which has not been disclosed to the Bank which materially affects adversely, or notice toas far as the Borrower can foresee, will materially affect adversely, the property, business, operations or filing withcondition (financial or otherwise) of the Borrower, the Premises or the Improvements.
3.14 The Borrower has filed all federal, state and local tax returns required to be filed and has paid or made adequate provision for the payment of all federal, state and local taxes, charges and assessments.
3.15 The making of the Loans or the execution and delivery of the Loan Documents will not subject the Bank to any Governmental Authority claim for a brokerage commission.
3.16 The Borrower has paid in full or any has made other Person is necessary or required satisfactory arrangements for payment of all premiums for insurance policies being delivered to the Bank.
3.17 All warranties and representations heretofore made by the Borrower to the Bank in connection with efforts to obtain the executionLoans, delivery or performance byincluding all projections, or enforcement againstbudgets and pro formas, the Borrower of this Amendment (other than (a) as have already been obtained are incorporated herein by reference and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer be material and to have been relied upon by the most recent financial statements furnished pursuant to Section 7.01(a) Bank in making the Loans.
3.18 The Borrower is a corporation, duly authorized and (b) validly existing under the laws of the Credit Agreement State of Delaware, with powers adequate to own its properties, and to carry on its business as presently conducted by it (including, but not limited to, within the date State of New Hampshire). The execution, delivery and performance of the Loan Documents to which the Borrower is a party are not in contravention of the Articles or By-laws of the Borrower, or of any provisions of law or the terms of any documents, agreements or undertakings to which the Borrower is a party or by which such financial statementsparty is bound.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Loan Agreement (Seachange International Inc), Loan Agreement (Seachange International Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of the Amendment has Loan Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with charter or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party by-laws or (ii) law or any ordercontractual restriction binding on or affecting the Borrower.
(c) No consent, injunctionauthorization or approval or other action by, writ and no notice to or decree of filing with, any Governmental Authority or regulatory body or any arbitral award other third party is required for the due execution, delivery and performance by the Borrower of any Loan Document to which it is a party, other than the order of the Federal Energy Regulatory Commission, dated June 5, 2019, which has been obtained and permits the transactions contemplated by the Loan Documents and remains in full force and effect.
(d) This Agreement has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally.
(e) The Audited Statements of the Borrower, copies of which have been furnished to each Lender, fairly present, in all material respects, the Consolidated financial condition, results of operations and cash flows of the relevant Persons and entities, as at the dates and for the periods therein indicated, all in accordance with generally accepted accounting principles consistently applied as in effect on the date of such Audited Statements. Since December 31, 2019, there has been no Material Adverse Change, except as shall have been disclosed or contemplated in the SEC Reports.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Property is subject; Significant Subsidiaries before any court, governmental agency or arbitrator that (ci) result could be reasonably likely to have a Material Adverse Effect other than the matters disclosed or contemplated in the creation of any Lien SEC Reports (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b“Disclosed Litigation”) or (dii) onlypurports to affect the legality, as would not validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby, and there has been no adverse change in the status or financial effect on the Borrower or any of its Significant Subsidiaries, of the Disclosed Litigation from that disclosed or contemplated in the SEC Reports that could be reasonably be expected likely to have a Material Adverse Effect.
(bg) The Amendment operations and properties of the Borrower and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been duly executed resolved without ongoing material obligations or costs, except as disclosed or contemplated in the SEC Reports, and delivered by no circumstances exist that could be reasonably likely to (i) form the Borrower. The Amendment constitutes legal, valid and binding obligations basis of the Borrower, enforceable an Environmental Action against the Borrower in accordance with its termsor any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity occupancy, use or at law) and implied covenants of good faith and fair dealingtransferability under any Environmental Law that could have a Material Adverse Effect.
(ch) No approvalERISA Event has occurred or is reasonably expected to occur with respect to any Plan.
(i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, consentcopies of which have been filed with the Internal Revenue Service, exemptionis complete and accurate and fairly presents the funding status of such Plan, authorizationand since the date of such Schedule B there has been no material adverse change in such funding status.
(i) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan and (ii) none of the Borrower and its Subsidiaries is an entity deemed to hold “plan assets” (within the meaning of the Plan Asset Regulations), or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with and neither the execution, delivery or performance byof the transactions contemplated hereby, including the making of any Loan hereunder, will give rise to a non-exempt prohibited transaction under Section 406 of ERISA or enforcement againstSection 4975 of the Internal Revenue Code.
(k) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(l) Except as set forth in the financial statements referred to in subsection (e) above, the Borrower and its Subsidiaries have no material liability with respect to “expected post retirement benefit obligations” within the meaning of this Amendment Statement of Financial Accounting Standards No. 106.
(other m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Credit Extension 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; and after applying the proceeds of each Credit Extension hereunder, margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) constitutes less than twenty-five percent (a25%) as have already been obtained of the value of those assets of the Borrower and its Subsidiaries which are in full force and effect, (b) filings subject to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizationsany limitation on sale or pledge, or any other actionsrestriction hereunder.
(n) Neither the Borrower nor any of its Subsidiaries is, notices or filings after the failure making of any Credit Extension or the application of the proceeds or repayment thereof, or the consummation of any of the other transactions contemplated hereby, will be, required to procure which would not reasonably be expected to have a Material Adverse Effectregistered as an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (within the meaning of the Investment Company Act of 1940, as amended).
(do) After giving The Borrower has implemented and maintains in effect policies and procedures designed to this Amendmentensure, the representations and warranties contained in each of the Credit Documents are true and correct its reasonable judgment, compliance in all material respects on by the Borrower, its Subsidiaries and as their respective directors, officers, employees and agents with Anti-Corruption Laws, Anti-Money Laundering Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and to the knowledge of the date hereof as though made on Borrower its directors and as of such date except to the extent that such representations agents, are in compliance with Anti-Corruption Laws and warranties specifically refer to an earlier date, in which case they shall be true and correct applicable Sanctions in all material respects respects. None of (a) the Borrower, any Subsidiary of the Borrower or, to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
(p) Neither the Borrower nor any Subsidiary of the Borrower (i) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities, or any violation under any laws or regulations relating to money laundering or terrorist financing, including the Bank ▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §§▇▇▇▇ et. seq. (the “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws, or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws.
(q) The Borrower is not an Affected Financial Institution.
(r) As of the Effective Date, the information included in the Beneficial Ownership Certification provided on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference prior to Material Adverse Effect shall be the Effective Date to any Lender in connection with this Agreement is true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (DTE Electric Co), Term Loan Credit Agreement (DTE Electric Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants on the Effective Date (and, solely with respect to the Specified Representations (i) on the Funding Date and (ii) to the extent required by Section 2.16, on the Maturity Date) as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the state of its incorporation.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes, if any, and the consummation of the transactions contemplated hereby and thereby, are within the Borrower’s organizational powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; charter or by-laws (bor other equivalent organizational documents) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as except where such contravention would not reasonably be expected to have a Material Adverse Effect, any law or contractual restriction binding on or affecting the Borrower.
(bc) The Amendment No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes, if any, except as would not reasonably be expected to have a material adverse effect on the validity or enforceability of this Agreement or the Notes, if any, or the material rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.
(d) This Agreement has been been, and each of the Notes, if any, when delivered hereunder will have been, duly executed and delivered by the Borrower. The Amendment constitutes Assuming that this Agreement has been duly executed by the Administrative Agent and each of the Lenders, this Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except subject to (i) bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable remedies of creditors and (ii) general principles of law (equity, regardless of whether enforcement is sought applied in proceedings in equity or at law) and implied covenants of good faith and fair dealing.
(ce) No approvalThe Consolidated balance sheet of the Borrower as at December 31, consent2012 and the related Consolidated statements of income and cash flows of the Borrower for the fiscal year then ended, exemptionwhich have been made publicly available on the SEC’s ▇▇▇▇▇ system website, authorizationfairly present, in all material respects, the Consolidated financial condition of the Borrower as at such date and the Consolidated results of the operations of the Borrower for the period ended on such date, all in accordance with GAAP.
(f) There is no pending or other action by(to the knowledge of the Borrower) threatened action, investigation or notice toproceeding, or filing withincluding, without limitation, any Governmental Authority Environmental Action, affecting the Borrower or any other Person is necessary of its Subsidiaries which has not been disclosed in the Borrower’s most recent Annual Report on Form 10-K or required in connection subsequent Quarterly Reports on Form 10-Q filed with the executionSEC on or prior to the date hereof before any court, delivery governmental agency or performance by, or enforcement against, the Borrower of this Amendment (arbitrator that is initiated by any Person other than a Lender in its capacity as a Lender (ai) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not that is reasonably be expected likely to have a Material Adverse Effect)Effect or (ii) that purports to affect the legality, validity or enforceability of any Loan Document and as to which there is a reasonable possibility of an adverse decision.
(dg) After giving effect Since December 31, 2012, there has been no Material Adverse Change.
(h) The Borrower is not an Investment Company, as such term is defined in the Investment Company Act of 1940, as amended.
(i) No part of the proceeds of any Loans will be used by the Borrower in any manner that would result in a violation of Regulation U or X, issued by the Board of Governors of the Federal Reserve System.
(j) Set forth on Schedule 4.01(j) hereof is a list of Subsidiaries of the Borrower that, for the most recent fiscal quarter of the Borrower, in the aggregate, together with the Borrower, accounted for not less than 65% of total revenues and sales as shown on the Consolidated financial statements of the Borrower for such fiscal quarter.
(k) None of the Borrower, any of its Restricted Subsidiaries, or any of the Borrower’s directors or officers, nor, to this Amendmentthe knowledge of the Borrower, any directors or officers of any of the representations Borrower’s Restricted Subsidiaries, is the subject of sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) (including by being listed on the list of Specially Designated Nationals and warranties contained Blocked Persons issued by OFAC) or the U.S. Department of State (collectively, “Sanctions”). None of the Borrower nor its Restricted Subsidiaries is located, organized or resident in a country or territory that is the subject of Sanctions. No part of the proceeds of the Loans shall be used by the Borrower in violation of the United States Foreign Corrupt Practices Act of 1977, as amended. The Borrower and each of the Credit Documents are true and correct its Restricted Subsidiaries is in compliance, in all material respects on and as of respects, with the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsAct.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Bridge Credit Agreement, Bridge Credit Agreement (Verizon Communications Inc)
Representations and Warranties of the Borrower. The In order to induce the Banks and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto each Bank and Administrative Agent that the following statements are true, correct and complete:
(ai) The execution, delivery and performance by the Borrower of this Amendment No. 1 and the Credit Agreement as amended by this Amendment has No. 1 (the “Amended Credit Agreement”; and collectively, the “Amendment Documents”) are within its partnership authority, have been duly authorized by all necessary corporate requisite action, and are not in conflict with the terms of any organizational instruments of such entity, or any instrument or agreement to which Borrower or General Partner is a party or by which Borrower, General Partner or any of their respective assets may be bound or affected;
(ii) The officers of General Partner executing this Amendment No. 1 and any other organizational action Amendment Documents required to be delivered by it on behalf of ▇▇▇▇▇▇▇▇ hereunder have been duly elected or appointed and does were fully authorized to execute the same at the time each such Amendment Document was executed;
(iii) The execution and delivery of, and the performance of the obligations required to be performed by ▇▇▇▇▇▇▇▇ under, this Amendment No. 1 and any other Amendment Documents do not and will not (a) contravene the terms of the Borrower’s Organization Documents; violate any provision of, or, except for those which have been made or obtained, require any filing (other than SEC disclosure filings), registration, consent or approval under, any Law (including, without limitation, Regulation U), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it, except for such violations, or filings, registrations, consents and approvals which if not done or obtained would not likely cause a Material Adverse Change to occur, (b) conflict with or result in a breach of or constitute a default under or require any breach consent under any indenture or contravention of (i) loan or credit agreement or any Contractual Obligation other agreement, lease or instrument to which the Borrower is it may be a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to by which the Borrower it or its Property is subject; properties may be bound or affected except for consents which have been obtained or which if not obtained are not likely to cause a Material Adverse Change to occur, (c) result in in, or require, the creation or imposition of any Lien (other than Permitted Liens); Lien, upon or with respect to any of its properties now owned or hereafter acquired which would likely cause a Material Adverse Change to occur, or (d) violate cause it to be in default under any Law applicable to the Borrower and the Amendmentsuch Law, exceptorder, in the case of clause (b) writ, judgment, injunction, decree, determination or (d) onlyaward or any such indenture, as agreement, lease or instrument which would not reasonably be expected to have likely cause a Material Adverse Effect.Change to occur; to the best of its knowledge, Borrower is in compliance with all Laws applicable to it and its properties where the failure to be in compliance would cause a Material Adverse Change to occur;
(biv) The Each of this Amendment has been duly executed No. 1 and delivered by the Borrower. The other Amendment constitutes Documents is a legal, valid and binding obligations obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof that such enforcement may be limited by applicable Debtor Relief Laws bankruptcy, insolvency and other similar laws affecting creditors’ rights generally and by equitable generally, as well as general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.equity;
(cv) No approval, consent, exemption, authorization, or This Amendment No. 1 and the other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with Amendment Documents have been duly executed and delivered by the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).Borrower;
(dvi) After giving effect to this Amendment, the The representations and warranties of the Borrower contained in each Article V of the Credit Documents Agreement are and will be true and correct in all material respects (or in the case of any representation or warranty that is qualified as to “materiality”, “Material Adverse Change” or similar language, in all respects) on and as of the date hereof Amendment Effective Date to the same extent as though made on and as of such date dates (except to the extent that in those cases where such representations and warranties specifically refer representation or warranty expressly relates to an earlier date, in which case they shall be such representations and warranties were true and correct in all material respects on and (or in the case of any representation or warranty that is qualified as to “materiality”, “Material Adverse Change” or similar language, in all respects) as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects)date, and except for changes in factual circumstances permitted hereunder), provided that the representations and warranties contained in Section 6.05 5.20 of the Credit Agreement shall is qualified insofar as the Borrower will be deemed required to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.file this Amendment No. 1 in connection with its compliance with its periodic reporting obligations; and
(evii) No Default or Event of Default shall exist immediately prior to has occurred and is continuing, both before and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithNo. 1.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Vornado Realty Lp), Term Loan Agreement (Vornado Realty Lp)
Representations and Warranties of the Borrower. The In order to induce each Lender to enter into this Amendment, the Borrower represents and warrants as followsto each Lender that:
(a) The execution, delivery representations and performance by warranties of the Borrower contained in the Original Agreement are true and correct at and as of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms time of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its termseffectiveness hereof, except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure facts on which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the such representations and warranties contained in each are based have been changed by the extensions of credit under the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent Agreement or that such representations and warranties specifically refer to an earlier date, date in which case they shall be true and correct in all material respects on and as of such earlier date date.
(provided that representations b) The Borrower and warranties that the General Partner are qualified duly authorized to execute and deliver this Amendment and have duly taken all corporate action necessary to authorize the execution and delivery of this Amendment and to authorize the performance of the obligations of the Borrower and the General Partner hereunder.
(c) The execution and delivery by materiality the Borrower and the General Partner of this Amendment, the performance by the Borrower and the General Partner of their obligations hereunder and the consummation of the transactions contemplated hereby do not and will not conflict with any provision of law, statute, rule or reference regulation or of the Organizational Documents of the Borrower or the General Partner, or of any material agreement, judgment, license, order or permit applicable to Material Adverse Effect shall be true or binding upon the Borrower or the General Partner, or result in the creation of any lien, charge or encumbrance upon any assets or properties of the Borrower or the General Partner. Except for those which have been obtained, no consent, approval, authorization or order of any court or governmental authority or third party is required in connection with the execution and correct in all respects)delivery by the Borrower and the General Partner of this Amendment or to consummate the transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall will be deemed to refer a legal and binding obligation of the Borrower and the General Partner, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or similar laws of general application relating to the most recent financial statements furnished pursuant to Section 7.01(a) enforcement of creditors’ rights and (b) by equitable principles of the Credit Agreement and to the date of such financial statementsgeneral application.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Credit Agreement (Ferrellgas Partners Finance Corp), Credit Agreement (Ferrellgas Partners Finance Corp)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as followsto the Administrative Agent and the Lenders that, upon the effectiveness of Section 1 above:
(a) The execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the all representations and warranties contained in each of the Credit Loan Parties in the Loan Agreement and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects on and as of the date hereof as though made on and as of such date hereof, except to the extent that any such representations and warranties specifically refer representation or warranty expressly relates to an earlier date, in which case they shall be true ;
(ii) the Form 10-K financial statements delivered on the date hereof (i) are complete and correct in all material respects on respects, (ii) have been prepared in reasonable detail and in accordance with GAAP applied (except as disclosed in reasonable detail therein) consistently throughout the periods reflected therein and with prior periods, and (iii) present fairly, in all material respects, the financial position and results of operations and cash flows of Esmark and its consolidated subsidiaries as of such earlier date dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes;
(provided that representations iii) the Borrower has the legal power and warranties that are qualified by materiality or reference authority to Material Adverse Effect shall be true execute and correct in all respects), and except that deliver this Agreement;
(iv) the representations and warranties contained in Section 6.05 officers executing this Agreement on behalf of the Credit Agreement shall be deemed Borrower have been duly authorized to refer execute and deliver the same and bind the Borrower with respect to the most recent financial statements furnished pursuant to Section 7.01(aprovisions hereof;
(v) the execution and (b) delivery hereof by the Borrower and the performance and observance by the Borrower of the Credit Agreement and provisions hereof do not violate or conflict with the articles of incorporation or organization, bylaws or operating agreement of the Borrower or any law applicable to the date Borrower or result in a breach of such financial statements.any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(evi) No no Default or Event of Default exists under the Loan Agreement, nor will any occur immediately after the execution and delivery of this Agreement or by the performance or observance of any provision hereof; and
(vii) upon the execution and delivery of this Agreement by the Borrower, this Agreement shall exist immediately prior to constitute a valid and after giving effect to (i) this Amendment and (ii) any Credit Extension made binding obligation of the Borrower in connection herewithevery respect, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application affecting the enforcement of creditors’ rights or by general principles of equity limiting the availability of equitable remedies.
Appears in 2 contracts
Sources: Amendment and Waiver (Esmark INC), Amendment and Waiver (Esmark INC)
Representations and Warranties of the Borrower. The Borrower and each of the Guarantors represents and warrants as follows(which representations and warranties shall survive the execution and delivery hereof) to the Lender that:
(a) The it has the corporate power and authority to execute, deliver and carry out the terms and provisions of this Amendment and has taken or caused to be taken all necessary corporate action to authorize the execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the this Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.;
(b) The no consent of any person (including, without limitation, shareholders or creditors of the Borrower or any Guarantor), and no action of, or filing with any governmental or public body or authority is required to authorize, or is otherwise required in connection with the execution, delivery and performance of this Amendment which has not been obtained;
(c) this Amendment has been duly executed and delivered by the Borrower. The Amendment a duly authorized officer on behalf of such party, and constitutes a legal, valid and binding obligations obligation of the Borrower, such party enforceable against the Borrower such party in accordance with its terms, except subject to bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting enforcement of creditors’ rights generally and by equitable the exercise of judicial discretion in accordance with general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.equity;
(cd) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or and performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effectwill not violate any law, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizationsstatute or regulation, or other actionsany order or decree of any court or governmental instrumentality, notices or filings conflict with, or result in the failure to procure which would not reasonably be expected to have breach of, or constitute a Material Adverse Effect).default under any contractual obligation of such party;
(de) After after giving effect to this Amendment, no Event of Default or event which upon notice or lapse of time or both would constitute an Event of Default has occurred and is continuing; and
(f) on the date hereof, the representations and warranties contained in each of the Credit Agreement and in the Related Documents are true and will be true, correct in all material respects and complete with the same effect as if made on and as of the date hereof as though made on and as of such date hereof, except to the extent that such representations and warranties specifically refer have been qualified in writing to, and acknowledged in writing by, the Lender and except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects on and case, as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsdate.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Credit Agreement (Luminent Mortgage Capital Inc), Credit Agreement (Luminent Mortgage Capital Inc)
Representations and Warranties of the Borrower. The In order to induce the Administrative Agent and the Lenders party hereto to enter into this Amendment, the Borrower represents and warrants as followsto the Administrative Agent and the Lenders that the following statements are true, correct and complete:
(ai) The execution, delivery and performance by the Borrower has the requisite power and authority to make, deliver and perform its obligations under the Amendment Documents to which it is a party;
(ii) the execution and delivery of this Amendment and the performance of the Amendment has Documents to which the Borrower is a party are within the Borrower’s partnership powers and have been duly authorized by all necessary corporate partnership or other organizational action and does not (a) contravene on the terms part of the Borrower’s Organization Documents; ;
(biii) conflict with or result in any breach or contravention the execution and delivery of (i) any Contractual Obligation this Amendment and the performance of the Amendment Documents to which the Borrower is a party (a) do not require any consent or (ii) any orderapproval of, injunctionregistration or filing with, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the executionAuthority, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) except such as have already been obtained or made and are in full force and effect, (b) filings to perfect security interests granted pursuant to will not violate any applicable law or regulation or the Amendment and charter or any order, judgment or decree of any Governmental Authority, by-laws or other organizational documents of the Borrower or any of its Subsidiaries, (c) approvalswill not violate or result in a default under any material indenture, consentsloan agreement, exemptionscredit agreement, authorizationspromissory note, letter of credit or other agreement binding upon the Borrower or any of its Subsidiaries or its assets, or other actionsgive rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
and (d) After giving effect will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries (other than Liens created under the Loan Documents);
(iv) this Amendment has been duly executed and delivered by the Borrower and each of the Amendment Documents to this Amendmentwhich the Borrower is a party constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with 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;
(v) the representations and warranties contained made or deemed made by the Loan Parties in each of the Credit Documents Agreement are true and correct in all material respects on (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) as of the date hereof as though made on and as of such date Amendment Effective Date except to the extent that such representations and warranties specifically refer expressly relate solely to an earlier date, date (in which case they such representations and warranties shall be have been true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), date) and except that for changes in factual circumstances specifically and expressly permitted under the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.Loan Documents; and
(evi) No no Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) this is continuing or will result from the consummation of the transactions contemplated by the Amendment and (ii) any Credit Extension made in connection herewithDocuments.
Appears in 2 contracts
Sources: Omnibus Amendment and Waiver, Omnibus Amendment and Waiver (Four Corners Property Trust, Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction where the nature of its business requires such qualification, and has full power and authority and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, holds all requisite governmental licenses (including, without limitation, all licenses the Borrower is required to hold or maintain which are issued by the Federal Communications Commission), permits and other approvals required for (i) the ownership and operation of its businesses and assets in the ordinary course and (ii) the due execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Notes to be delivered by it, and the consummation of the financing transactions contemplated hereby, are within the Borrower's corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) the Borrower's charter or by-laws, (ii) any Contractual Obligation law applicable to which the Borrower or (iii) any material contractual restriction contained in any Material Contract binding on or affecting the Borrower.
(c) Except as have been obtained, 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 (provided that, solely with respect to any such third party, such authorization, approval, other action, notice or filing is party material to business of the Borrower and its Subsidiaries, taken as a whole) is required for the due execution, delivery and performance by the Borrower 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 the Borrower. This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective 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.
(i) The audited Consolidated balance sheet of the Borrower and its Subsidiaries as of December 25, 2005 and the related audited Consolidated statements of income, shareholders' equity and cash flows of the Borrower and its Subsidiaries for the fiscal year ended December 25, 2005, accompanied by an opinion of Pricewaterhouse Coopers LLP, independent public accountants, copies of which have been made available to each Lender, fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with GAAP as in effect on the date of preparation thereof. Since December 25, 2005, there has been no Material Adverse Change except for matters disclosed to the Lenders prior to the date hereof (including, without limitation, pursuant to the Borrower's SEC Reports).
(ii) The unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of March 26, 2006 and the related Consolidated statements of income, shareholders' equity and cash flows of the Borrower and its Subsidiaries for the fiscal quarter ended March 26, 2006, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with GAAP as in effect on the date of preparation thereof.
(iii) The unaudited pro forma condensed Consolidated balance sheet of the Borrower and its Subsidiaries as of March 26, 2006, and the related unaudited pro forma combined statements of operations of the Borrower and its Subsidiaries for the fiscal quarter then ended, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date, after giving effect to the execution and delivery of this Agreement, the making of the initial Advances hereunder and the use of the proceeds thereof as contemplated hereunder (including to consummate the Stock Repurchase and the Refinancing) all in accordance with GAAP as in effect on the date of preparation thereof.
(f) Except as set forth in the financial statements referred to in Section 4.01(e) or in the Borrower's SEC Reports, there is no pending or to the knowledge of the Borrower after due inquiry, threatened action, suit, investigation, litigation, proceeding or labor controversy, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any orderNote or the consummation of the financing transactions contemplated hereby, injunctionand no conditions exist at, writ on or decree under any property now or previously owned or leased by the Borrower which, with the passage of time, or the giving of notice or both, would give rise to material liability under any Environmental Laws and that could reasonably be expected to have a Material Adverse Effect.
(g) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Governmental Authority Advance will be used for any purpose that violates, or which is inconsistent with, the provisions of Regulation T, U or X of the Board of Governors of the Federal Reserve of the United States, as in effect from time to time.
(h) The Borrower and each of its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, technology, know-how and processes necessary for the conduct of its business as currently conducted except for those the failure to own or license which could not reasonably be expected to have a Material Adverse Effect (the "Intellectual Property"). No claim has been asserted and is pending by any arbitral award to which Person challenging or questioning the Borrower or its Property is subject; (c) result in the creation use of any Lien (other than Permitted Liens); such Intellectual Property or (d) violate the validity or effectiveness of any Law applicable to the such Intellectual Property, nor does such Borrower and the Amendmentknow of any valid basis for any such claim, except, in either case, for such claims that in the case aggregate could not reasonably be expected to have a Material Adverse Effect. The use of clause (b) or (d) onlysuch Intellectual Property by the Borrower and its Subsidiaries does not infringe on the rights of any Person, as would except for such claims and infringements that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(bi) The Amendment has been duly executed and delivered Borrower is not an "investment company", or a company "controlled" by an "investment company", within the Borrowermeaning of the Investment Company Act of 1940, as amended. The Amendment constitutes legalBorrower is not subject to regulation under any Federal or State statute or regulation which limits its ability to incur Debt, valid and binding obligations so long as assets of certain regulated Subsidiaries of the BorrowerBorrower are not used as collateral to secure such Debt.
(j) The Information Memorandum and all other information, enforceable against the Borrower exhibits or reports (other than financial projections (such projections being prepared in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(cbased upon assumptions the Borrower believes to have been reasonable at the time made) No approval, consent, exemption, authorization, and information of a general economic or other action by, industry-specific nature) furnished by or notice to, on behalf of the Borrower or filing with, any Governmental Authority otherwise made available to the Agent or any other Person is necessary or required Lender in connection with the execution, delivery or performance by, or enforcement against, the Borrower negotiation and syndication of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted Agreement or pursuant to the Amendment terms of this Agreement taken as a whole as of the date furnished or otherwise made available to the Agent or any Lender, do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which such statements were made.
(k) The Borrower and its Subsidiaries, taken as a whole, are Solvent.
(cl) approvalsThe Borrower and each of its Subsidiaries has filed, consentshas caused to be filed or has been included in all tax returns and reports required by law to have been filed by it and has paid all Taxes thereby shown to be due and owing, exemptionsexcept any such Taxes which are not yet delinquent or are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books.
(m) The Borrower and each of its Subsidiaries is in compliance with all applicable laws, authorizationsrules, or other actionsregulations and orders that are material to the conduct of the business of the Borrower and its Subsidiaries taken as a whole, notices or filings including, without limitation, compliance with ERISA, Environmental Laws and the Patriot Act except for any failure to procure comply which would could not reasonably be expected to have a Material Adverse Effect).
(dn) After giving effect to this Amendment, the representations The Borrower and warranties contained in each of its Subsidiaries maintains insurance with responsible and reputable insurance companies or associations (including affiliated companies) in such amounts and covering such risks as is customarily carried by companies engaged in similar businesses and owning similar properties as the Credit Documents are true Borrower and correct in all material respects on its Subsidiaries; provided, however, that the Borrower and as of the date hereof as though made on and as of such date except its Subsidiaries may self-insure to the extent it determines in its good faith reasonable business judgment that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsinsurance is consistent with prudent business practices.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Bridge Credit Agreement (Tribune Co), Credit Agreement (Tribune Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The execution, delivery and performance by the Borrower of this Amendment, and the Amendment has performance by the Borrower of the Credit Agreement, as amended by this Amendment, (i) are within the Borrower's corporate powers, (ii) have been duly authorized by all necessary corporate or other organizational action and does (iii) do not and will not (aA) contravene require any consent or approval of the terms stockholders of the Borrower’s Organization Documents; , (bB) conflict with violate any provision of the charter or by-laws of the Borrower or of law, (C) violate any legal restriction binding on or affecting the Borrower, (D) result in a breach of, or constitute a default under, any breach indenture or contravention of (i) loan or credit agreement or any Contractual Obligation other agreement, lease or instrument to which the Borrower is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to by which the Borrower it or its Property is subject; properties may be bound or affected, or (cE) result in or require the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable pursuant to the Borrower and the Amendment, except, in the case Loan Documents) upon or with respect to any of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effectits properties.
(b) The Amendment has been duly executed No Governmental Approval is required for the due execution, delivery and delivered performance by the Borrower. The Borrower of this Amendment.
(c) This Amendment constitutes and the Credit Agreement, as amended by this Amendment, are the legal, valid and binding obligations of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except ; subject to the extent qualification, however, that the enforceability thereof may be limited by applicable Debtor Relief Laws enforcement of the rights and remedies herein and therein is subject to bankruptcy and other similar laws of general application affecting creditors’ rights generally and by equitable remedies of creditors and the application of general principles of law equity (regardless of whether enforcement is sought considered in a proceeding in equity or at law) ). This Amendment has been duly executed and implied covenants delivered on behalf of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)Borrower.
(d) After giving effect to this Amendment, the The representations and warranties contained of the Borrower set forth in each Section 7.01 of the Credit Documents Agreement are true and correct in all material respects on and as of the date hereof hereof, as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No event has occurred and is continuing that constitutes a Default or an Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithDefault.
Appears in 2 contracts
Sources: Credit Agreement (CMS Energy Corp), Credit Agreement (Consumers Energy Co)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as follows:
(a) The Borrower is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of each Transaction Document, and the Amendment has consummation of the transactions contemplated hereby and thereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not contravene (ai) contravene the terms of the Borrower’s Organization Organizational Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party , or (ii) any order, injunction, writ law or decree of any Governmental Authority contractual restriction binding on or any arbitral award to which affecting the Borrower or its Property is subject; Borrower.
(c) result in 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 creation due execution, delivery and performance by the Borrower of any Lien Transaction Document, except for those authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(d) Each Transaction Document (other than Permitted Liens); or (dthe Notes) violate any Law applicable to has been, and each of the Borrower and the AmendmentNotes when delivered hereunder will have been, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default The Borrower is not engaged in the business of extending credit for the purpose of purchasing or Event carrying margin stock (within the meaning of Default shall exist immediately prior Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Draw will be used to and after giving effect purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(if) this Amendment and (ii) any Credit Extension made in connection herewithThe Borrower is not required to register as an investment company under the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Loan and Security Agreement (On Deck Capital Inc), Loan and Security Agreement (On Deck Capital Inc)
Representations and Warranties of the Borrower. The Subject to Section 5.2, the Borrower represents and warrants as follows:
(a1) The executionBorrower is a corporation duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment jurisdiction in which it is organized, has been duly authorized by all necessary requisite corporate power and authority to conduct its business, to own its properties and assets as it is now conducted and as proposed to be conducted and is qualified or other organizational action and does licensed to do business as a foreign corporation in good standing in all jurisdictions in which the conduct of business requires it to so qualify or be licensed except where the failure to be so qualified or licensed or in good standing would not reasonably be expected to have a Material Adverse Effect.
(a2) contravene the terms Each of the Borrower’s Organization Documents; (b) conflict with or result 's Subsidiaries is duly organized, validly existing and in any breach or contravention good standing under the laws of (i) any Contractual Obligation its jurisdiction of organization, and has all corporate powers and all governmental licenses, authorizations, consents and approvals required to which the Borrower is party or (ii) any ordercarry on its business as now conducted, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable except to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as extent that failure to do so would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has execution, delivery and performance by the Borrower of this Agreement, the Notes and any Application, including the Borrower's use of the proceeds thereof, are within the Borrower's corporate powers, have been duly executed authorized by all necessary corporate action, and delivered do not contravene (i) the Borrower's charter or by-laws or (ii) law (including, without limitation, Regulations G, T, U and X issued by the Board of Governors of the Federal Reserve Board) or any material contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Agreement, the Notes and any Application, except such as have been obtained. The Amendment constitutes Borrower and its Subsidiaries are in compliance with all applicable laws, ordinances, rules, regulations, orders and requirements of government authorities the failure to comply with which would have a Material Adverse Effect, except where the necessity of compliance therewith is being contested in good faith by appropriate proceedings.
(d) This Agreement is, and each of the Notes and Applications (if any) when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(ce) No approvalThere has been no material adverse change in the financial condition or operations of the Borrower and its Subsidiaries, consenttaken as a whole, exemptionfrom that shown by its combined financial statements as at, authorizationand for the twelve months ended, December 31, 1995.
(f) There are no actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened against the Borrower or any Subsidiary the reasonably anticipated outcome of which would materially and adversely affect the ability of the Borrower to perform its obligations under this Agreement or any Note or which purports to affect the legality, validity or enforceability of this Agreement or any Note.
(g) After giving effect to each Loan, not more than 25% of the value of the property and assets of the Borrower, either individually or on a consolidated basis consists of margin stock (as defined in the Regulations issued by the Board of Governors of the Federal Reserve Board).
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Loan 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, except in compliance with Regulations G, T, U and X issued by the Board of Governors of the Federal Reserve Board.
(i) Neither the Borrower nor any Subsidiary is an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940.
(j) The Borrower and each Subsidiary have filed all tax returns (Federal, state and local) required to be filed and paid all taxes shown thereon to be due, including interest and penalties, or other action byprovided adequate reserves for payment thereof.
(k) In the ordinary course of its business, or notice tothe Borrower conducts an ongoing review of the effect of Environmental Laws on the operations and properties of the Borrower, or filing within the course of which it identifies and evaluates associated liabilities and costs (including, without limitation, any Governmental Authority capital or operating expenditures required for clean-up or closure of properties presently or previously owned, any other Person is necessary or required liabilities in connection with off-site deposit of Hazardous Substances or wastes, any capital or operating expenditures required to achieve or maintain compliance with environmental protection standards imposed by law or as a condition of any license, permit or contract, any related constraints on operating activities, including any periodic or permanent shutdown of any facility or reduction in the executionlevel of or change in the nature of operations conducted thereat and any actual or potential liabilities to third parties, delivery or performance byincluding employees, or enforcement againstand any related costs and expenses). On the basis of this review, the Borrower has reasonably concluded that such associated liabilities and costs, including the costs of compliance with Environmental Laws, are unlikely to cause a material adverse change in the financial condition or results of operations of the Borrower from that shown on its combined financial statements as at, and for the nine month period ended, September 30, 1996.
(1) The combined balance sheet of Primex and its Consolidated Subsidiaries as of December 31, 1995 and the related combined statements of income and cash flow for the fiscal year then ended, reported on by KPMG Peat Marwick LLP and set forth in the Form 10 of Primex, a copy of which has been delivered to each of the Banks, fairly present, in conformity with GAAP, the combined financial position of Primex and its Consolidated Subsidiaries as of such date and their combined results of operations and cash flows for such fiscal year.
(2) The unaudited combined balance sheet of Primex and its Consolidated Subsidiaries as of September 30, 1996 and the related unaudited combined statements of income and cash flow for the nine months then ended, set forth in the Form 10 of Primex, a copy of which has been delivered to each of the Banks, fairly present, in conformity with GAAP applied on a basis consistent with the financial statements referred to in paragraph (l)(1) of this Amendment Article 5, the combined financial position of Primex and its Consolidated Subsidiaries as of such date and their combined results of operations and cash flows for such nine month period (other than subject to normal year-end adjustments).
(a3) Except as have already disclosed in the Borrower's most recent Form 10, Form 10-K or Form 10-Q, as the case may be, since December 31, 1995, there has been obtained no material adverse change in the financial position or results of operations of the Borrower and are in full force and effectits Subsidiaries, considered as a whole.
(m) Subject to the last sentence of this Section 4.2(m), (bi) filings no ERISA Event has occurred or is reasonably likely to perfect security interests granted pursuant occur with respect to the Amendment Borrower, (ii) there was no Insufficiency with respect to any Plan and (ciii) approvalseach of the Borrower and each ERISA Affiliate is in compliance in all respects with the presently applicable provisions of ERISA and the Internal Revenue Code with respect to each Plan. Notwithstanding the foregoing, consentsthis Section 4.2(m) shall be deemed true and correct unless such ERISA Event, exemptions, authorizations, Insufficiency or other actions, notices non-compliance alone or filings in the failure to procure which would not aggregate is reasonably be expected likely to have a Material Adverse Effect).
(dn) After giving effect All information heretofore furnished by the Borrower to the Agent or any Bank for purposes of or in connection with this AmendmentAgreement or any transaction contemplated hereby (other than projections, assumptions, estimates or predictions), including but not limited to the representations Information Statement, is and warranties contained all such information hereafter furnished by the Borrower to any Bank (other than projections, assumptions, estimates or predictions) will be, in each of case as modified or supplemented by the Credit Documents are other information so furnished, true and correct accurate in all material respects on and the date as of which such information is stated or certified. The Borrower has disclosed to the date hereof as though made on Banks in writing any and as of such date except all facts which materially and adversely affect or may affect (to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsthe Borrower can now reasonably foresee), and except that the representations and warranties contained in Section 6.05 business, operations or financial condition of the Credit Agreement shall be deemed to refer to Borrower and its Subsidiaries, taken as a whole, or the most recent financial statements furnished pursuant to Section 7.01(a) and (b) ability of the Credit Agreement and Borrower to the date of such financial statementsperform its obligations under this Agreement, it being understood that facts do not include projections, estimates, assumptions or predictions.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 2 contracts
Sources: Credit Agreement (Primex Technologies Inc), Credit Agreement (Primex Technologies Inc)
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants to the Resigning Agent, the Successor Agent and the Lenders that as followsof the date hereof:
(ai) The the execution, delivery and performance of this Agreement and that certain fee letter dated as of even date herewith by and between Borrower and Cortland (as it may be amended, supplemented or otherwise modified from time to time, the Borrower of the Amendment has “Agent Fee Letter”) and Borrower’s obligations hereunder and thereunder have been duly authorized by all necessary corporate or other organizational limited liability company action and does such execution, delivery and performance is not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in prohibited by any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or Applicable Law;
(ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment this Agreement has been duly executed and delivered by the Borrower and constitutes, when executed and delivered by Borrower. The Amendment constitutes , a legal, valid and binding obligations obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.;
(ciii) No no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (A) the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment Agreement, or (other than B) the exercise by the Resigning Agent, the Successor Agent or any Lender of its rights under this Agreement except for (a1) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect and (2) those approvals, consents, exemptions, authorizations or other actions, notices or filings filings, the failure to procure obtain or make which would could not reasonably be expected to have a Material Adverse Effect).; and
(div) After giving effect to this Amendment, each of the representations and warranties contained made by Borrower as set forth in each Article III of the Credit Documents are Agreement or in any other Loan Document is true and correct in all material respects on (unless otherwise qualified by materiality or the occurrence of a Material Adverse Effect, in which case such representation and warranty is true and correct in all respects) as of the date hereof with the same effect as though made on and as of such the date hereof, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsdates.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Sources: Successor Agent Agreement and Amendment to Credit Agreement (Horizon Global Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto and, where applicable, agrees with each of the Secured Parties, that:
(a) The executionBorrower is a limited liability company duly formed, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment has been jurisdiction named at the beginning hereof and is duly authorized by all necessary corporate or other organizational action qualified to do business, and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result is in any breach or contravention of (i) any Contractual Obligation to good standing, in every jurisdiction in which the Borrower is party or (ii) any order, injunction, writ or decree nature of any Governmental Authority or any arbitral award its business requires it to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower be so qualified and the Amendment, except, in the case of clause (b) or (d) only, as would not failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has execution, delivery and performance by the Borrower of this Agreement, the Contribution Agreement and all other Facility Documents to be entered into by it, including the Borrower’s use of the proceeds of Advances and remittances of Collections, are within the Borrower’s limited liability company powers, have been duly authorized by all necessary limited liability company action, do not contravene (i) the Borrower’s certificate of formation or limited liability company agreement, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any contractual restriction binding on or affecting the Borrower or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than Permitted Liens and liens in favor of the Administrative Agent for the benefit of the Secured Parties with respect to the Collateral), and no transaction contemplated hereby or by the Contribution Agreement requires compliance with any bulk sales act or similar law. This Agreement, the Contribution Agreement and each other Facility Document to be entered into by the Borrower have each been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, authorization or approval or other action by, or and no notice to, to or filing with, any Governmental Authority governmental authority or any other Person regulatory body is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment Agreement, the Contribution Agreement or any other Facility Document to be entered into by it, except for (other than i) the filing of UCC financing statements, all of which financing statements have been duly filed and, to the Borrower’s knowledge, are in full force and effect, and (aii) such as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this AmendmentThis Agreement, the representations Contribution Agreement and warranties contained in each other Facility Document to be entered into by the Borrower constitute the legal, valid and binding obligation of the Credit Documents are true Borrower enforceable against the Borrower in accordance with their respective terms subject to bankruptcy and correct similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(i) The Borrower has furnished to the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended;
(ii) Since December 31, 2011, (A) no material adverse change has occurred in the business, assets, liabilities, financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect; and
(iii) The opening pro forma balance sheet of the Borrower as at March 21, 2012, giving effect to the initial Advance to be made under this Agreement, a copy of which has been furnished to the Administrative Agent, present fairly in all material respects in accordance with GAAP the financial position of the Borrower as at such date, and since January 23, 2012 no material adverse change has occurred in the business, assets, liabilities, financial condition or results of operations of the Borrower.
(f) There is no pending or, to the Borrower’s knowledge, threatened action or proceeding affecting the Borrower before any court, governmental agency or arbitrator other than such actions and proceedings that the Collection Agent certifies to the Administrative Agent are, in the best judgment of the Collection Agent, without legal merit as related to the Borrower and are being contested in good faith. The Borrower is not in default with respect to any order of any court, arbitrator or Governmental Entity, except in any Immaterial Respect.
(g) No proceeds of any Advance will be used by the Borrower (i) to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended, or (ii) for any purpose other than to indirectly fund a purchase of Receivables and related assets from an Originator and to make payments expressly contemplated under Section 3.1 of the Borrower’s operating agreement.
(h) Each Receivable, together with the Contract related thereto, shall, at all times, be owned by the Borrower free and clear of any Lien (other than Permitted Liens), and the Administrative Agent shall have a valid and perfected first priority security interest in the property of the Borrower consisting of each Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Lien (other than Permitted Liens); provided that the Borrower (acting directly or through the Collection Agent) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of the Borrower or the Collection Agent; provided further that the Borrower (acting through the Collection Agent) shall have the time period specified in Section 5.02(k) to remove and terminate the ▇▇▇ County Lien. No effective financing statement or other instrument similar in effect with the Borrower as debtor, covering any Receivable or the Related Security or Collections with respect thereto shall at any time be on file in any recording office except such as may be filed in favor of the Administrative Agent relating to this Agreement; provided that the Borrower (acting directly or through the Collection Agent) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of the Borrower or the Collection Agent; provided further that the Borrower (acting through the Collection Agent) shall have the time period specified in Section 5.02(k) to remove and terminate the ▇▇▇ County Lien. The contributions of the Receivables and related assets to the Borrower by the Transferor under the Contribution Agreement constitute valid and “true contributions” and transfers for consideration (and not merely a pledge of such Receivables and assets for security purposes), enforceable against creditors of the Transferor, and no such Receivables or related assets shall constitute property of Transferor. The purchases of the Receivables and related assets by Buyer from each Originator under the Sale Agreement constitute valid and true sales and transfers for consideration (and not merely a pledge of such Receivables and assets for security purposes), enforceable against creditors of the Transferor and such Originator, and no such Receivables or related assets shall constitute property of the Transferor or such Originator.
(i) As of the close of business on each Business Day prior to the latest Termination Date hereunder, a Borrowing Base Deficiency shall not exist.
(j) No Monthly Report or Funding Request (if prepared by the Borrower, the Collection Agent or any Affiliate thereof, or to the extent that information contained therein is supplied by the Borrower, the Collection Agent or such Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished by the Borrower to the Administrative Agent or any Managing Agent in connection with this Agreement is or will be inaccurate in any material respect as of the date hereof it is or shall be dated or (except as though made on otherwise disclosed to the Administrative Agent and the Managing Agents, as the case may be, at such time) as of the date so furnished or dated, and no such date except document contains or will contain any material misstatement of fact or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Borrower represents only that it acted in good faith and utilized assumptions that the Borrower believed to be reasonable at the time made.
(k) The principal place of business and chief executive office of the Borrower and the office where the Borrower keeps all of its Records are located at the address or addresses of the Borrower referred to in Section 10.02 hereof (or at such representations other locations as to which the notice and warranties specifically refer to an earlier dateother requirements specified in Section 6.08 shall have been satisfied). The Borrower is located in the jurisdiction of organization named at the beginning hereof for purposes of Section 9-307 of the UCC as in effect in the State of New York, and the office in the jurisdiction of organization of the Borrower in which case they shall a UCC financing statement is required to be true filed in order to perfect the security interest granted by the Borrower hereunder is Secretary of State of the State of Delaware. The Borrower’s organizational identification number is 5099211.
(l) The Borrower has no trade names, fictitious names, assumed names or “doing business as” names or other names under which it has done or is doing business.
(m) The Contribution Agreement is the only agreement pursuant to which the Borrower acquires Receivables, the Borrower has furnished to the Administrative Agent a true, correct and correct in all material respects on complete copy of the Contribution Agreement and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects)the Sale Agreement, and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Contribution Agreement and the Sale Agreement are in full force and effect and no “Event of Termination” under the Contribution Agreement or the Sale Agreement or event or circumstance that would with the passage of time or the giving of notice (or both) constitute an “Event of Termination” under the Contribution Agreement or the Sale Agreement.
(n) The Borrower was formed on January 23, 2012, and the Borrower did not engage in any business activities prior to the date of such financial statementsthis Agreement. The Borrower has no subsidiaries.
(eo) No Default The Borrower shall have given reasonably equivalent value to the Transferor in consideration for the transfer by the Transferor to the Borrower of the Receivables and Related Security under the Contribution Agreement, no such transfer shall have been made for or Event on account of Default an antecedent debt owed by the Transferor to the Borrower, and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Law.
(p) A copy of the Certificate of Formation of the Borrower as in effect on the date of this Agreement has been provided to the Administrative Agent.
(q) The Borrower is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) at the time of (and immediately after) each transfer of Receivables to the Borrower under the Contribution Agreement, and at the time of (and immediately after) each Advance and remittance of Collections hereunder, the Borrower shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made not have been an insolvent person, in connection herewith.insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Lender as follows, with the intent that the Lender will rely thereon in entering into this Agreement and in concluding the transactions contemplated hereby:
(a) The execution, delivery and performance by the Borrower and each of its subsidiaries is a valid and subsisting limited liability company, corporation or other entity duly formed and, as applicable, in good standing under the laws of the Amendment jurisdiction in which it is incorporated, formed, continued, or amalgamated and has been duly authorized by all necessary the company, corporate or other organizational action entity power and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation authority to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award own its property and to which the Borrower or conduct its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, business as would not reasonably be expected to have a Material Adverse Effect.currently conducted;
(b) The Amendment the Borrower has the company power and capacity to enter into this Agreement, and this Agreement has been duly executed authorized, executed, and delivered by the Borrower. The Amendment Borrower and constitutes legal, valid valid, and binding obligations of the Borrower, enforceable against the Borrower by the Lender in accordance with its their respective terms, except subject to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws laws relating to bankruptcy, insolvency, or similar laws affecting creditors’ rights generally and by to the discretion of a court of competent jurisdiction regarding the availability of equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.remedies;
(c) No approvalneither the Borrower nor any of its subsidiaries has committed an act of bankruptcy, has proposed a compromise or arrangement to its creditors generally, has had a petition or a receiving order in bankruptcy filed against it, has made a voluntary assignment in bankruptcy, has taken any proceedings with respect to a compromise or arrangement, has taken any proceedings to have itself declared bankrupt or wound-up, has taken any proceedings to have a receiver appointed for any of its property, or has had any execution or distress become enforceable or become levied upon any of its property;
(d) except as set forth in Schedule 4.1(d), neither the Borrower nor any of its subsidiaries is in default in any material respect (nor has any event occurred which, but for the lapse of time or the giving of Notice, or both, would constitute a default in any material respect) under any obligation or under any licence or permit to own and/or operate its properties or assets or to carry on its business;
(e) the Borrower and each of its subsidiaries owns, possesses, and has good and marketable title to its property and assets free and clear of any and all Liens, except Permitted Liens;
(f) except as set forth in Schedule 4.1(f), the Borrower is not Party to or bound by any agreement of guarantee, indemnification, assumption, endorsement, or any other like commitment of the obligations, liabilities (contingent or otherwise), or indebtedness of any other person;
(g) the execution and delivery of this Agreement by the Borrower and the compliance by the Borrower with the terms thereof will not:
(i) violate or conflict with any applicable laws, statute, ordinance, regulation, or rule, or any judgment, decree, order, or award of any court, governmental body, or arbitrator having jurisdiction over the Borrower or any of its subsidiaries;
(ii) require any authorization, consent, approval, exemption, authorization, or other action by, or notice Notice to, any stock exchange, governmental agency, authority, regulatory body, or filing court;
(iii) violate or conflict with, or constitute a default (or an event which, with Notice or lapse of time, or both, would constitute a default) under any Governmental Authority contract to which the Borrower or any other Person of its subsidiaries is a Party, or by which the Borrower or any of its subsidiaries or any of their assets or properties may be bound or affected;
(iv) result in the termination of, any additional payment under, or the change in any terms of, or accelerate the performance of any obligation required by (or give rise to a right of any Party thereto, exercisable on Notice or otherwise, to terminate, to require that any additional payment be made under, to change any terms of, or to accelerate the performance of any obligation under) any contract to which the Borrower or any of its subsidiaries is a Party or by which the Borrower, any of its subsidiaries, or any of their assets or properties may be bound or affected;
(v) result in the creation of any Lien upon any of its property or assets;
(vi) violate or conflict with any license held by it or which is necessary to the operation of its business; or
(vii) violate or required in connection conflict with the executionprovisions of the Borrower’s certificate of formation or operating agreement;
(h) except as set forth in Schedule 4.1(h), delivery or performance byneither the Borrower nor any of its subsidiaries is a Party to any actions, suits, or enforcement againstproceedings which could materially affect their business or financial condition, and to the best of the Borrower’s knowledge no such actions, suits, or proceedings have been threatened as at the date hereof;
(i) the Borrower and each of this Amendment (other than (a) as have already been obtained its subsidiaries is, in all material respects, conducting its business in compliance with all applicable laws, rules, and are regulations of each jurisdiction in full force which its business is carried on and effectis licensed, (b) filings to perfect security interests granted pursuant registered, or qualified in all jurisdictions in which it owns, leases, or operates its property or carries on business to the Amendment extent required to enable its business to be carried on as now conducted and (c) approvalsits property and assets to be owned, consentsleased, exemptionsand operated, authorizationsand all such licences, registrations, and qualifications are valid, subsisting, and in good standing and neither the Borrower nor any of its subsidiaries has received a Notice of non-compliance, nor knows of, any facts that could give rise to a Notice of noncompliance with any such laws, regulations, or other actions, notices or filings the failure to procure permits which would not reasonably be expected to have a Material Adverse Effect).Effect on the Borrower. Except for any violation or default which would not have a Material Adverse Effect on the Borrower, neither the Borrower nor any of its subsidiaries is (i) in violation of its certificate of formation, operating agreement, or similar organizational documents; (ii) in default, and no event has occurred that, with Notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant, or condition contained in any indenture, mortgage, deed of trust, loan agreement, or other agreement or instrument to which it is a Party or by which it is bound or to which any of its properties or assets is subject; or (iii) in violation of any law or statute or any judgment, order, rule, or regulation of any court or arbitrator or governmental or regulatory authority;
(dj) After giving effect to this Amendment, the representations Borrower and warranties contained in each of its subsidiaries possesses all material certificates, licenses, approvals, permits, and authorizations (collectively, “Governmental Licenses”) and has made all declarations and filings with the Credit Documents appropriate federal, state, local, or foreign governmental or regulatory authorities that are true necessary to own, lease, or license, as the case may be, and correct to conduct its business and is in compliance in all material respects on with the terms and conditions of all such Governmental Licenses. Neither the Borrower nor any of its subsidiaries has received any Notice of proceedings relating to the revocation or modification of any such Governmental License;
(k) the Borrower and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are customary in the businesses in which it engages, and the Borrower has no reason to believe that it or its subsidiaries will not be able to renew its existing insurance coverage as and when such coverage expires or obtain similar coverage from similar insurers as may be necessary to continue their respective business at a similar cost to that of its existing coverage; and
(l) the Borrower and each of its subsidiaries has filed in a timely manner all necessary tax returns and Notices and has paid all applicable taxes of whatsoever nature for all tax years prior to the date hereof as though made on and as of such date except to the extent that such representations taxes have become due or have been alleged to be due and warranties specifically refer the Borrower is not aware of any tax deficiencies or interest or penalties accrued or accruing, or alleged to an earlier datebe accrued or accruing, thereon where, in any of the above cases, it might reasonably be expected to result in any Material Adverse Effect on the Borrower; and
(m) except as set forth in Schedule 4.1(m), all material contracts to which case they shall be true the Borrower and correct each of its subsidiaries is a Party or by which it is bound are legal, valid, binding, and in full force and effect and enforceable by the Borrower or its subsidiaries, as applicable, in accordance with their respective terms and are the product of arm’s length negotiations between the Parties thereto; and the Borrower and each of its subsidiaries has performed in all material respects on all respective obligations required to be performed by it to date under the material contracts and as is not, and is not to the knowledge of such earlier date the Borrower alleged to be (provided that representations and warranties that are qualified by materiality with or reference to Material Adverse Effect shall be true and correct in all respectswithout the lapse of time or the giving of Notice, or both), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsbreach or default in any material respect thereunder.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Representations and Warranties of the Borrower. The In order to induce the Lenders and the Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto each Lender and the Administrative Agent that the following statements are true, correct and complete:
(ai) The execution, delivery and performance by the Borrower of this Amendment No. 1 and the Loan Agreement as amended by this Amendment has No. 1 (the “Amended Loan Agreement”) are within its partnership powers and authority and have been duly authorized by all necessary corporate or other requisite organizational action action;
(ii) The execution and does not delivery of, and the performance of the obligations required to be performed by Borrower under, this Amendment No. 1 and the Amended Loan Agreement (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with do not require any consent or result in any breach approval of, registration or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any orderfiling with, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the executionPerson, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) except such as have already been obtained or made or will be made by the legally required time and are in full force and effect, (b) filings to perfect security interests granted pursuant to will not violate any applicable law or regulation or the Amendment and (c) approvalscharter, consents, exemptions, authorizations, by-laws or other actionsorganizational documents of the Borrower or any of its Subsidiaries or any order of any Governmental Authority, notices except for any violation of any applicable law or filings the failure to procure which would regulation that is not reasonably be expected likely to have result in a Material Adverse Effect).
, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, except for any violation or default that is not reasonably likely to result in a Material Adverse Effect, and (d) After giving effect will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries, except for any Refinancing Mortgages;
(iii) Each of this Amendment No. 1 and the Amended Loan Agreement constitutes a legal, valid and binding obligation of the Borrower, enforceable against Borrower in accordance with its terms, subject to this Amendmentapplicable 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;
(iv) This Amendment No. 1 has been duly executed and delivered by the Borrower;
(v) The representations and warranties of the Borrower contained in each Article III of the Credit Documents Loan Agreement are and will be true and correct in all material respects on and as of the date hereof Amendment Effective Date to the same extent as though made on and as of such date (except to the extent that in those cases where such representations and warranties specifically refer representation or warranty expressly relates to an earlier date, in which case they shall be such representations and warranties were true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsdate), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.; and
(evi) No Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithis continuing.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as of the date hereof as follows:
(a) The executionBorrower is a corporation duly organized and validly existing under the laws of the State of Delaware.
(b) The Borrower is conducting its business in compliance with its Organizational Documents. The Organizational Documents of the Borrower (including all amendments thereto) as currently in effect have been made available to the Lenders and remain in full force and effect with no defaults outstanding thereunder.
(c) The Borrower has full power and authority to enter into each of the Financing Documents and to make the borrowings and the other transactions contemplated thereby.
(d) All authorizations, consents, approvals, registrations, exemptions and licenses that are necessary for the borrowing hereunder, the execution and delivery of the Financing Documents and the performance by the Borrower of its obligations thereunder, have been obtained and are in full force and effect, except for registrations and filings in connection with the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms issuance of the Borrower’s Organization Warrants and shares of Common Stock pursuant the Financing Documents; , filings, recordings or registrations contemplated by the Security Agreement and filings necessary to comply with laws, rules, regulations and orders required in the ordinary course of business.
(be) conflict All authorizations, consents, approvals, registrations, exemptions and licenses with or result from Government Authorities that are necessary for the conduct of its business as currently conducted have been obtained and are in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any orderfull force and effect, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable except to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as extent any failure to so obtain would not reasonably be expected to have a Material Adverse Effect.
(bf) The Amendment No Default or Event of Default (or any other default or event of default, however described) has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations occurred under any of the BorrowerFinancing Documents.
(g) Neither the entering into any of the Financing Documents nor the compliance with any of its terms conflicts with, enforceable against violates or results in a breach of any of the Borrower in accordance with its termsterms of, except or constitutes a default or event of default (however described) or requires any consent under, to the extent applicable, (i) any agreement to which the enforceability thereof may be limited Borrower is a party or by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles which it is bound, (ii) any of law the terms of the Organizational Documents or (regardless of whether enforcement is sought in equity iii) any judgment, decree, resolution, award or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority order or any other Person is necessary statute, rule or required in connection with the execution, delivery or performance by, or enforcement against, regulation applicable to the Borrower of this Amendment (other than (a) as have already been obtained and are or its assets, except where such conflicts, violations, breaches or defaults, individually or in full force and effectthe aggregate, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(dh) After giving effect The Borrower is not engaged in or the subject of any litigation, arbitration, administrative regulatory compliance proceeding, or investigation, nor are there any litigation, arbitration, administrative, regulatory, compliance proceedings or investigations pending or, to this Amendment, the representations and warranties contained in each knowledge of the Credit Documents are true and correct Borrower, threatened before any court or arbitrator or before or by any Government Authority against the Borrower, that would reasonably be expected to result in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to a Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 Borrower is not aware of the Credit Agreement shall be deemed any facts reasonably likely to refer give rise to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of any such financial statementsproceeding.
(ei) No Default or Event of Default shall exist immediately prior to and after giving effect to The Borrower (i) this Amendment is capable of paying its debts as they fall due and is not unable and has not admitted its inability to pay debts as they fall due, (ii) is not bankrupt or insolvent and (iii) has not taken action, and no such action has been taken by a third party, for the Borrower’s winding up, dissolution, or liquidation or similar executory or judicial proceeding or for the appointment of a liquidator, custodian, receiver, trustee, administrator or other similar officer for the Borrower or any Credit Extension made or all of its assets or revenues.
(j) No Lien exists on Borrower’s property, except for Permitted Liens.
(k) The obligation of the Borrower to make any payment under this Agreement (together with all charges in connection herewiththerewith) is absolute and unconditional, and there exists no right of setoff or recoupment, counterclaim, cross-claim or defense of any nature whatsoever to any such payment.
Appears in 1 contract
Representations and Warranties of the Borrower. The In order to induce the Lenders and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto the Lenders and Administrative Agent that the following statements are true, correct and complete:
(ai) The the Borrower has the requisite power and authority to make, deliver and perform its obligations under this Amendment No. 1, the Credit Agreement as amended by this Amendment No. 1 (the “Amended Agreement”) and the replacement Notes and new Notes described in Section 4D below (the “Replacement and New Notes”, and together with this Amendment No. 1 and the Amended Agreement, the “Amendment Documents”);
(ii) the execution, delivery and performance by the Borrower of the Amendment has Documents are within the Borrower’s partnership powers and have been duly authorized by all necessary corporate partnership or other organizational action on the part of the Borrower;
(iii) the execution, delivery and does not performance of this Amendment No. 1 and the Replacement and New Notes (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with do not require any consent or result in any breach approval of, registration or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any orderfiling with, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the executionAuthority, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) except such as have already been obtained or made and are in full force and effect, (b) filings to perfect security interests granted pursuant to will not violate any applicable law or regulation or the Amendment and charter, by-laws or other organizational documents of the Company, the Borrower or any of its Subsidiaries or any order judgment or decree of any Governmental Authority, (c) approvalswill not violate or result in a default under any indenture, consentsagreement or other instrument binding upon the Company, exemptions, authorizationsthe Borrower or any of its Subsidiaries or its assets, or other actionsgive rise to a right thereunder to require any payment to be made by the Company, notices the Borrower or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
any of its Subsidiaries, and (d) After giving effect to this Amendmentwill not result in the creation or imposition of any Lien on any asset of the Company, the Borrower or any of its Subsidiaries;
(iv) each of the Amendment Documents has been duly executed and delivered by the Borrower and constitutes legal, valid and binding obligation of Borrower enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
(v) the representations and warranties contained made or deemed made by the Borrower in each of the Credit Documents any Loan Document are true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) on and as of the date hereof as though made on and as of such date Amendment Effective Date except to the extent that such representations and warranties specifically refer expressly relate solely to an earlier date, date (in which case they such representations and warranties shall be have been true and correct in all material respects on and (other than any representation or warranty qualified as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to “materiality”, “Material Adverse Effect Effect” or similar language, which shall be true and correct in all respects), ) (on and as of such earlier date) and except that for changes in factual circumstances specifically and expressly permitted under the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.Loan Documents; and
(evi) No no Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) is continuing or will result from the consummation of the transactions contemplated by this Amendment and (ii) any Credit Extension made in connection herewithNo. 1.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Gramercy Property Trust Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The executionBorrower is a corporation duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment State of Delaware, and is properly qualified to do business and in good standing in, and where necessary to maintain its rights and privileges has been duly authorized by all necessary corporate complied with the fictitious name statute of, every jurisdiction where the failure to maintain such qualification, good standing or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not compliance could reasonably be expected to have a Material Adverse Effect.
(b) The Amendment execution, delivery and performance by the Borrower of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Borrower’s charter or by-laws or (ii) law or any material agreement binding on the Borrower or (iii) to the best of the Borrower’s knowledge, any other agreement binding on the Borrower which, as to any agreement referred to in this clause (iii), could be reasonably expected to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to or filing with, (i) any governmental authority or regulatory body or (ii) any other third party under any material agreement binding on the Borrower or (iii) to the best of the Borrower’s knowledge, under any other agreement binding on the Borrower, is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes to be delivered by it, other than those authorizations or approvals or actions that have been obtained or notices or filings that have been made or, in the case of any third party under an agreement described in clause (iii), except to the extent that failure to obtain such authorization or approval or action, or make such notice or filing could not reasonably be expected to have a Material Adverse Effect.
(d) This Agreement has been been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except subject to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and by equitable subject to general principles of law (equity, regardless of whether enforcement is sought considered in a proceeding in equity or at law) and implied covenants of good faith and fair dealing.
(ce) No approvalThe Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, consent2011, exemptionand the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, authorizationaccompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30, 2011, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer or other action bytreasurer of the Borrower, copies of which have been furnished to each Lender, fairly present in all material respects, subject, in the case of said balance sheet as at June 30, 2011, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments and the absence of footnotes, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since March 31, 2011, there has been no Material Adverse Change, except as disclosed in public filings made with the Securities and Exchange Commission prior to July 27, 2011 or notice todelivered to the Lenders prior to the date hereof.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or filing withproceeding, including, without limitation, any Governmental Authority Environmental Action, against the Borrower or any other Person of its Subsidiaries before any court, governmental agency or arbitrator that (i) is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (aii) purports to affect the legality, validity or enforceability of this Agreement or any Note or of the consummation of the transactions contemplated hereby, and there has been no material adverse change in the status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described in public filings with the Securities and Exchange Commission prior to July 27, 2011 or delivered to the Lenders prior to the date hereof.
(g) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used in a manner that would violate, or result in a violation of, such Regulation U.
(h) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan.
(j) (i) As of the date of this Agreement, the funding target attainment percentage, as defined in Section 303(d)(2) of ERISA, of each Plan exceeds 90% and there has been no material adverse change in the funding status of any such Plan since such date; and (ii) as have already of the last annual actuarial valuation date, the funding target attainment percentage, as defined in Section 303(d)(2) of ERISA, of each Plan with a funding shortfall, as defined in Section 303(c)(4) of ERISA, in excess of $25,000,000 exceeds 90% and there has been obtained no material adverse change in the funding status of any such Plan since such date.
(k) Neither the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(l) Neither the Borrower nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and are no such Multiemployer Plan is reasonably expected to be in full force reorganization or to be terminated, within the meaning of Title IV of ERISA.
(m) The Borrower and effect, each of its Subsidiaries has good and marketable title to its properties and assets (b) filings to perfect security interests granted pursuant to other than those properties and assets the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure loss of which would not reasonably be expected to have a Material Adverse Effect) free and clear of all Liens or rights of others, except for Liens permitted by Section 5.02(a).
(dn) After giving effect No information, schedule, exhibit or report furnished by the Borrower to the Agent or to any Lender in connection with this AmendmentAgreement, or in connection with any Advance, contained any untrue statement of a material fact or omitted a material fact necessary to make the statement made not misleading in light of all the circumstances existing at the date the statement was made; provided that, with respect to projected financial information, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent Borrower represents only that such representations and warranties specifically refer information was prepared in good faith based upon assumptions believed to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that reasonable at the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementstime.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Sources: Credit Agreement (Ca, Inc.)
Representations and Warranties of the Borrower. The In order to induce the Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders to enter into this Amendment No. 2, the Borrower represents and warrants as followsto the Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders that the following statements are true, correct and complete:
(a) The execution, delivery and performance by i. the Borrower has the requisite power and authority to make, deliver and perform its obligations under this Amendment No. 2 and the Credit Agreement as amended by this Amendment No. 2 (the “Amended Agreement” and, together with this Amendment No. 2, the “Amendment Documents”);
ii. the execution and delivery of this Amendment No. 2 and the performance of the Amendment has Documents are within the Borrower’s partnership powers and have been duly authorized by all necessary corporate partnership or other organizational action on the part of the Borrower;
iii. the execution and does not delivery of this Amendment No. 2 and the performance of the Amendment Documents (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with do not require any consent or result in any breach approval of, registration or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any orderfiling with, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the executionAuthority, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) except such as have already been obtained or made and are in full force and effect, (b) filings to perfect security interests granted pursuant to will not violate any applicable law or regulation or the Amendment and charter, by-laws or other organizational documents of the Company, the Borrower or any of its Subsidiaries or any order judgment or decree of any Governmental Authority, (c) approvalswill not violate or result in a default under any indenture, consentsagreement or other instrument binding upon the Company, exemptions, authorizationsthe Borrower or any of its Subsidiaries or its assets, or other actionsgive rise to a right thereunder to require any payment to be made by the Company, notices the Borrower or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
any of its Subsidiaries, and (d) After giving effect to will not result in the creation or imposition of any Lien on any asset of the Company, the Borrower or any of its Subsidiaries;
iv. this AmendmentAmendment No. 2 has been duly executed and delivered by the Borrower and each of the Amendment Documents constitutes a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);
v. the representations and warranties contained made or deemed made by the Loan Parties in each of the Credit Documents any Loan Document are true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) on and as of the date hereof as though made on and as of such date Amendment Effective Date except to the extent that such representations and warranties specifically refer expressly relate solely to an earlier date, date (in which case they such representations and warranties shall be have been true and correct in all material respects on and (other than any representation or warranty qualified as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to “materiality”, “Material Adverse Effect Effect” or similar language, which shall be true and correct in all respects), ) on and as of such earlier date) and except that for changes in factual circumstances specifically and expressly permitted under the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.Loan Documents; and
(e) No vi. no Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) is continuing or will result from the consummation of the transactions contemplated by this Amendment and (ii) any Credit Extension made in connection herewithNo. 2.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Gramercy Property Trust Inc.)
Representations and Warranties of the Borrower. The In order to induce the Lenders and Administrative Agent to enter into this Amendment No. 2, the Borrower represents and warrants as followsto the Lenders and Administrative Agent that the following statements are true, correct and complete:
(ai) The the execution, delivery and performance of this Amendment No. 2 and the Credit Agreement as amended by this Amendment No. 2 (the Borrower of “Amended Agreement”, and together with this Amendment No. 2, the “Amendment has Documents”) are within the Borrower’s partnership powers and have been duly authorized by all necessary corporate partnership or other organizational action on the part of the Borrower;
(ii) the execution, delivery and does not performance of this Amendment No. 2 (a) contravene do 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 and except for such filings as may be required with the terms of the Borrower’s Organization Documents; SEC to comply with disclosure obligations, (b) conflict with will not violate any applicable law or result in any breach regulation or contravention the charter, by-laws or other organizational documents of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ of its Subsidiaries or decree the Parent Companies or any order of any Governmental Authority or Authority, except for any arbitral award to which the Borrower or its Property is subject; (c) result in the creation violation of any Lien (other than Permitted Liens); applicable law or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as regulation that would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approvalwill not violate or result in a default under any indenture, consent, exemption, authorizationagreement or other instrument binding upon the Borrower or any of its Subsidiaries or the Parent Companies or their assets, or other action by, or notice to, or filing with, give rise to a right thereunder to require any Governmental Authority payment to be made by the Borrower or any other Person is necessary of its Subsidiaries or required in connection with the executionParent Companies, delivery except for any violation or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which default that would not reasonably be expected to have a Material Adverse Effect).
, and (d) After giving effect will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries or the Parent Companies;
(iii) each of the Amendment Documents has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its respective terms, subject to this Amendmentapplicable 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;
(iv) the representations and warranties contained made or deemed made by the Borrower in each of the Credit Documents any Loan Document are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date hereof as though made on and as of such date Amendment Effective Date (except to the extent that any such representations representation and warranties specifically refer warranty expressly relates to an earlier date, in which case they such representation and warranty shall be true and correct in all material respects on and (or, in the case of any such representation or warranty already qualified by materiality, in all respects) as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsdate), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.; and
(ev) No no Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) is continuing or will result from the consummation of the transactions contemplated by this Amendment and (ii) any Credit Extension made in connection herewithNo. 2.
Appears in 1 contract
Sources: Term Loan Agreement (Brixmor Operating Partnership LP)
Representations and Warranties of the Borrower. The In order to induce the Lender to advance the proceeds of each Loan, the Borrower hereby represents and warrants to the Lender as follows:
a. PDS is a corporation duly organized and validly existing under the laws of the State of Minnesota, and PDS-Nevada is a corporation duly organized and validly existing under the laws of the State of Nevada. The Borrower is duly qualified to do business and is in good standing in every other jurisdiction wherein the nature of its business or the character of its properties makes such qualification necessary and where failure to be so qualified and in good standing, in the aggregate, would not have a material adverse effect on the business, properties, operations, assets, liabilities or condition (afinancial or otherwise) of the Borrower. The Borrower has all requisite power and authority to carry on its business as now conducted and as presently proposed to be conducted.
b. The Borrower has full power and authority to execute and deliver the Loan Documents and to incur and perform its obligations hereunder and thereunder. The execution, delivery and performance by the Borrower of the Amendment has Loan Documents and any and all other documents and transactions contemplated hereby or thereby, have been duly authorized by all necessary corporate action, will not violate any provision of law or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with Articles of Incorporation or the Bylaws of the Borrower or result in the breach of, constitute a default under, or create or give rise to any breach lien under, any indenture or contravention of (i) any Contractual Obligation other agreement or instrument to which the Borrower is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to by which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); property may be bound or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to affected. The Loan Documents have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered to the Lender by an appropriate officer of the Borrower who is authorized by and specified in the Borrower's Bylaws to execute and so deliver such agreements. The Amendment constitutes Borrower is not in violation of or subject to any contingent liability on account of any statute, law, rule, ordinance, order, writ, injunction or decree to the extent that such violation or contingent liability would result in a material adverse effect on the condition (financial or otherwise), business, properties, or assets of Borrower. As used herein, material adverse effect means a violation or contingent liability that would result in a cost or loss to Borrower of $500,000 or more.
c. The Loan Documents constitute the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its their respective terms.
d. Except as set forth in EXHIBIT C hereto, except there is no action, suit or proceeding pending or, to the extent knowledge of the enforceability thereof may be limited by applicable Debtor Relief Laws Borrower, threatened against or affecting creditors’ rights generally and by equitable principles the Borrower, or any basis therefor, which, if adversely determined, would have a material adverse effect on the condition (financial or otherwise), business, properties or assets of law (regardless the Borrower or which would question the validity of whether enforcement is sought in equity the Loan Documents or at law) and implied covenants any instrument, document or other agreement related hereto or required hereby, or impair the ability of good faith and fair dealingthe Borrower to perform its obligations under the foregoing agreements.
e. The Borrower possesses adequate licenses, permits, franchises, patents, copyrights, trademarks and trade names, or rights thereto (ccollectively "Licenses"), to conduct its business substantially as now conducted and as presently proposed to be conducted. Without limiting the foregoing, PDS - Nevada possesses all licenses required under Nevada gaming law for the operation of PDS - Nevada's business. Each License is validly issued and in full force and effect. Borrower has fulfilled and performed all of its obligations with respect thereto. No event has occurred which: (1) results in, or after notice or lapse of time or both would result in, suspension, surrender, failure to renew, revocation or termination of any material License; or (2) materially and adversely affects or in the future may (so far as Borrower can now reasonably foresee) materially adversely affect any of the rights of Borrower thereunder. Borrower is not a party to and the Borrower does not have any knowledge of any notice of violation, order or complaint issued by or before any court or regulatory body or of any other proceedings which could in any manner result in suspension, surrender, failure to renew, revocation or termination of any material License or otherwise threaten or adversely affect the validity or continued effectiveness of the Licenses of Borrower. Borrower has no reason to believe that any Licenses will not be renewed in the ordinary course. Borrower has fully cooperated with every regulatory body having jurisdiction over any of the Licenses or the activities of Borrower with respect thereto, and Borrower has filed all material reports, applications, documents, instruments, and information required to be filed by it pursuant to applicable laws, rules and regulations. Borrower has posted all required bonds required under its Licenses.
f. The Borrower owns the Contracts constituting part of the Collateral, subject to no prior security interests, assignments, liens or encumbrances. The Lender has a valid first perfected security interest in the Collateral subject to no prior security interests or encumbrances. The security interest of the Lender has been recorded with the appropriate recording offices, and the Lender's security interest in the Equipment is a first perfected security interest, subject only to the rights of the Obligors and the Borrowers under the Collateral.
g. No director, shareholder, officer, employee of or consultant to the Borrower is prohibited by law, regulation, contract or the terms of any license, franchise, permit, certificate, approval or consent from participating in the business of the Borrower as director, shareholder, officer, employee of or as consultant to the Borrower.
h. Except with respect to reporting and compliance requirements of the regulatory gaming authorities in the jurisdictions in which either of the Borrowers or the Obligors conducts business, no consent, approval, consent, exemption, authorizationorder or authorization of, or other action byregistration, declaration or filing with, or notice to, or filing with, any Governmental Authority governmental authority or any other Person third party is necessary or required in connection with the executionexecution and delivery of the Loan Documents or any of the agreements or instruments contemplated thereby to which the Borrower is a party, delivery or in connection with the carrying out or performance byof any of the transactions required or contemplated hereby or thereby or, if required, such consent, approval, order or authorization has been obtained or such registration, declaration or filing has been accomplished or such notice has been given prior to the date hereof.
i. The Borrower has filed all local, state, federal and other tax returns required to be filed by it and either paid all taxes shown thereon to be due, including interest and penalties, which are not being contested in good faith and by appropriate proceedings, or enforcement againstprovided adequate reserves for payment thereof. The Borrower has no information or knowledge of any objections to or claims for additional taxes in respect of local, state and federal or other income or excess profits tax returns of the Borrower of this Amendment (for prior years.
j. The Borrower does not intend to, or believe that it will, incur debts beyond its ability to pay such debts as they mature.
k. All financial and other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant information provided to the Amendment and (c) approvals, consents, exemptions, authorizations, Lender by or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each on behalf of the Credit Documents are true and correct Borrower in all material respects on and connection with the Borrower's request for the Loan fairly presented the financial condition of the Borrower as of the date hereof as though made on dates thereof and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in disclosed fully all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 liabilities of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to Borrower. Since the date of such financial statementsand other information, there has been no material adverse change in the financial condition of the Borrower.
(e) No Default or Event l. Each qualified retirement plan of Default shall exist immediately prior the Borrower, if any, presently conforms to and after giving effect is administered in a manner consistent with the Employee Retirement Income Security Act of 1974.
m. As of the date hereof, no Contract is a Delinquent Contract.
n. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to (i) purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
o. No proceeds of the Loan will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934.
p. The transaction evidenced by this Amendment Agreement does not violate any law pertaining to usury or the payment of interest on loans.
q. The Borrower will use the proceeds of the Loan solely for lawful and (ii) any Credit Extension made in connection herewithproper corporate purposes of the Borrower.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto and, where applicable, agrees with each of the Secured Parties, that:
(a) The executionBorrower is a limited liability company duly formed, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment has been jurisdiction named at the beginning hereof and is duly authorized by all necessary corporate or other organizational action qualified to do business, and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result is in any breach or contravention of (i) any Contractual Obligation to good standing, in every jurisdiction in which the Borrower is party or (ii) any order, injunction, writ or decree nature of any Governmental Authority or any arbitral award its business requires it to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower be so qualified and the Amendment, except, in the case of clause (b) or (d) only, as would not failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has execution, delivery and performance by the Borrower of this Agreement, the Contribution Agreement and all other Facility Documents to be entered into by it, including the Borrower’s use of the proceeds of Advances and remittances of Collections, are within the Borrower’s limited liability company powers, have been duly authorized by all necessary limited liability company action, do not contravene (i) the Borrower’s limited liability company agreement, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any contractual restriction binding on or affecting the Borrower or its property other than such restrictions that could not reasonably be expected to adversely affect the Collection Agent’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than Permitted Liens and liens in favor of the Administrative Agent for the benefit of the Secured Parties with respect to the Collateral), and no transaction contemplated hereby or by the Contribution Agreement requires compliance with any bulk sales act or similar law. This Agreement, the Contribution Agreement and each other Facility Document to be entered into by the Borrower have each been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, authorization or approval or other action by, or and no notice to, to or filing with, any Governmental Authority governmental authority or any other Person regulatory body is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment Agreement, the Contribution Agreement or any other Facility Document to be entered into by it, except for (other than i) the filing of UCC financing statements, all of which financing statements have been duly filed and, to the Borrower’s knowledge, are in full force and effect, and (aii) such as have already been obtained and are in full force and effect.
(d) This Agreement, the Contribution Agreement and each other Facility Document to be entered into by the Borrower constitute the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(i) The Borrower has furnished to the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended;
(ii) Since December 31, 2011, (bA) filings no material adverse change has occurred in the business, assets, liabilities, financial condition or results of operations of the Parent and its subsidiaries taken as a whole, and (B) no event has occurred or failed to occur which has had or could reasonably be expected to result in, singly or in the aggregate, a Material Adverse Effect; and
(iii) The opening pro forma balance sheet of the Borrower as at March 21, 2012, giving effect to the initial Advance to be made under this Agreement, a copy of which has been furnished to the Administrative Agent, present fairly in all material respects in accordance with GAAP the financial position of the Borrower as at such date, and since January 23, 2012 no material adverse change has occurred in the business, assets, liabilities, financial condition or results of operations of the Borrower.
(f) There is no pending or, to the Borrower’s knowledge, threatened action or proceeding affecting the Borrower before any court, governmental agency or arbitrator other than such actions and proceedings that the Collection Agent certifies to the Administrative Agent are, in the best judgment of the Collection Agent, without legal merit as related to the Borrower and are being contested in good faith. The Borrower is not in default with respect to any order of any court, arbitrator or Governmental Entity, except in any Immaterial Respect.
(g) No proceeds of any Advance will be used by the Borrower (i) to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended, or (ii) for any purpose other than to indirectly fund a purchase of Receivables and related assets from an Originator and to make payments expressly contemplated under Section 3.1 of the Borrower’s operating agreement.
(h) Each Receivable, together with the Contract related thereto, shall, at all times, be owned by the Borrower free and clear of any Lien (other than Permitted Liens), and the Administrative Agent shall have a valid and perfected first priority security interest in the property of the Borrower consisting of each Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Lien (other than Permitted Liens); provided that the Borrower (acting directly or through the Collection Agent) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of the Borrower or the Collection Agent. No effective financing statement or other instrument similar in effect with the Borrower as debtor, covering any Receivable or the Related Security or Collections with respect thereto shall at any time be on file in any recording office except such as may be filed in favor of the Administrative Agent relating to this Agreement; provided that the Borrower (acting directly or through the Collection Agent) shall have up to 10 days following actual knowledge thereof to remove any immaterial Lien that was improvidently filed without the consent of the Borrower or the Collection Agent. The contributions of the Receivables and related assets to the Borrower by the Transferor under the Contribution Agreement constitute valid and “true contributions” and transfers for consideration (and not merely a pledge of such Receivables and assets for security purposes), enforceable against creditors of the Transferor, and no such Receivables or related assets shall constitute property of Transferor. The purchases of the Receivables and related assets by Buyer from each Originator under the Sale Agreement constitute valid and true sales and transfers for consideration (and not merely a pledge of such Receivables and assets for security purposes), enforceable against creditors of the Transferor and such Originator, and no such Receivables or related assets shall constitute property of the Transferor or such Originator.
(i) As of the close of business on each Business Day prior to the Termination Date, a Borrowing Base Deficiency shall not exist.
(j) No Monthly Report or Funding Request (if prepared by the Borrower, the Collection Agent or any Affiliate thereof, or to the extent that information contained therein is supplied by the Borrower, the Collection Agent or such Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished by the Borrower to the Administrative Agent or any Managing Agent in connection with this Agreement is or will be inaccurate in any material respect as of the date it is or shall be dated or (except as otherwise disclosed to the Administrative Agent and the Managing Agents, as the case may be, at such time) as of the date so furnished or dated, and no such document contains or will contain any material misstatement of fact or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or projection, the Borrower represents only that it acted in good faith and utilized assumptions that the Borrower believed to be reasonable at the time made.
(k) The principal place of business and chief executive office of the Borrower and the office where the Borrower keeps all of its Records are located at the address or addresses of the Borrower referred to in Section 10.02 hereof (or at such other locations as to which the notice and other requirements specified in Section 6.08 shall have been satisfied). The Borrower is located in the jurisdiction of organization named at the beginning hereof for purposes of Section 9-307 of the UCC as in effect in the State of New York, and the office in the jurisdiction of organization of the Borrower in which a UCC financing statement is required to be filed in order to perfect the security interest granted by the Borrower hereunder is Secretary of State of the State of Delaware. The Borrower’s organizational identification number is 5099211.
(l) The Borrower has no trade names, fictitious names, assumed names or “doing business as” names or other names under which it has done or is doing business.
(m) The Contribution Agreement is the only agreement pursuant to which the Borrower acquires Receivables, the Borrower has furnished to the Administrative Agent a true, correct and complete copy of the Contribution Agreement and the Sale Agreement, and the Contribution Agreement and the Sale Agreement are in full force and effect and no “Event of Termination” under the Contribution Agreement or the Sale Agreement or event or circumstance that would with the passage of time or the giving of notice (or both) constitute an “Event of Termination” under the Contribution Agreement or the Sale Agreement.
(n) The Borrower was formed on January 23, 2012, and the Borrower did not engage in any business activities prior to the date of this Agreement. The Borrower has no subsidiaries.
(o) The Borrower shall have given reasonably equivalent value to the Transferor in consideration for the transfer by the Transferor to the Borrower of the Receivables and Related Security under the Contribution Agreement, no such transfer shall have been made for or on account of an antecedent debt owed by the Transferor to the Borrower, and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Law.
(p) A copy of the Certificate of Formation of the Borrower as in effect on the date of this Agreement has been provided to the Administrative Agent.
(q) The Borrower is not an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable (within the meaning of such term in the Bankruptcy Law) at the time of (and immediately after) each transfer of Receivables to the Borrower under the Contribution Agreement, and at the time of (and immediately after) each Advance and remittance of Collections hereunder, the Borrower shall not have been an insolvent person, in insolvent circumstances or on the eve of insolvency, as applicable, within the meaning of the Bankruptcy Law. The Borrower has entered into this Agreement for the purpose of indirectly financing its acquisition of Receivables and Related Security from the Originators, and not for the purpose of defeating, hindering, delaying, defrauding or oppressing the rights and claims of creditors or others against the Borrower or for any other purpose relating in any way to the claims of creditors or others against the Borrower.
(r) The Borrower accounts for the transfers to it from the Transferor of interests granted in Receivables, Related Security and Collections under the Contribution Agreement as “true” capital contributions and legal sales of such Receivables, Related Security and Collections in its books, records and financial statements, in each case consistent with GAAP and with the requirements set forth herein.
(s) The sole and exclusive business of the Borrower is the acquisition of Receivables and Related Security pursuant to the Amendment Contribution Agreement for its own account, the borrowing of money pursuant to the terms of this Agreement, and making operational cost payments expressly contemplated under Section 3.1 of the Borrower’s operating agreement.
(ct) approvalsThe Borrower is operated as an entity with assets and liabilities distinct from those of the Transferor, consentseach Originator and any Affiliates thereof, exemptionsand the Borrower hereby acknowledges that the Administrative Agent, authorizationsthe Managing Agents and each Lender are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a separate legal entity from, the Transferor, each Originator and from each such other Affiliate.
(u) The Borrower is not an “investment company” or a company controlled by an “investment company” registered or required to be registered under the Investment Company Act.
(v) The Borrower is not engaged, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each of the quoted terms is defined or used in Regulation T, U or X promulgated pursuant to the securities Exchange Act of 1934, as amended). No part of the proceeds of any Receivable has been used for so purchasing or carrying margin stock or for any purpose which violates, or other actions, notices or filings the failure to procure which would be inconsistent with, the provisions of Regulation T, U or X.
(w) The Borrower and the Collection Agent each has the right (whether by license, sublicense or assignment) to use all of the computer software used by the Transferor, the Collection Agent and/or any Originator to account for the Collateral to the extent necessary to administer the Collateral, and, in the case of the Borrower and the Collection Agent, to assign (by way of sale or collateral pledge) or sublicense such rights to use all of such software to the Administrative Agent.
(x) The Borrower has filed or caused to be filed all federal and other material tax returns which are required to be filed by it, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it, other than any taxes or assessments, the validity of which are being contested in good faith by appropriate proceedings and with respect to which the Borrower has set aside or has caused to be set aside adequate reserves on its books (consolidated or otherwise) in accordance with GAAP.
(y) Except as could not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect result in material liability to this Amendmentthe Borrower, the representations and warranties contained in each of the Credit Documents are true Borrower and correct its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events, could reasonably be expected to result in material liability of the Borrower or any of its ERISA Affiliates. The present value of all benefit liabilities under each Plan (based on and the assumptions used for funding purposes) did not, as of the last annual valuation date hereof as though made on and as of such date except to applicable thereto, exceed the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.fair mark
Appears in 1 contract
Sources: Receivables Loan Agreement (Community Health Systems Inc)
Representations and Warranties of the Borrower. (a) The Borrower represents and warrants to the Bank as follows:
(ai) The Borrower is a corporation duly incorporated, validly existing and in good standing under the laws of its state of incorporation, is duly qualified to do business in every other jurisdiction where the nature of its activities requires such qualification except where the failure to so qualify would have a material adverse effect upon the Borrower, has all requisite power and authority, corporate or otherwise, to conduct its businesses, to own its properties, to execute, deliver, and perform all of its obligations under this Agreement, the Security Documents and the Notes.
(ii) The execution, delivery and performance by the Borrower of this Agreement, the Amendment has Security Documents and the Notes have been duly authorized by all necessary corporate or other organizational action and does do not (a) contravene and will not require any consent or approval of the terms stockholders of the Borrower which has not been obtained or violate any provision of the charter documents of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed Borrower additionally represents and delivered warrants to the Bank as follows:
(i) The execution, delivery and performance by the Borrower of this Agreement, the Security Documents and the Notes do not and will not (x) violate any provision of any law, rule, regulation (including, without limitation, Regulation U of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to the Borrower. The Amendment constitutes legal, valid and binding obligations (y) except for license agreements which by their terms restrict the pledge of or an encumbrance or assignment of the license, result in a breach of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease or instrument to which the Borrower is a party or by which the Borrower or the Borrower's properties may be bound or affected, or (z) except as may be provided by this Agreement, the Security Documents and/or the Notes, result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever on any Assets or properties of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(cii) The Borrower is not in material default under any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any indenture, agreement, lease or instrument by which it is bound, which default would result in a material adverse consequence to the Borrower.
(iii) No approvalauthorization, consent, exemptionapproval, authorizationlicense, or other action by, or notice to, exemption of or filing withor registration with any court or governmental department, any Governmental Authority commission, board, bureau, agency or any other Person instrumentality, domestic or foreign, is or will be necessary or required in connection with to the valid execution, delivery or performance by, or enforcement against, by the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effectAgreement, (b) filings to perfect security interests the Security Documents or the Notes except for the perfection of liens granted pursuant to under certain of the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)Security Documents.
(div) After giving effect to this AmendmentThe most recent balance sheet of the Borrower, the representations related statement of income and warranties contained in each retained earnings of the Credit Documents are true Borrower and correct in all material respects on and other financial information of the Borrower furnished to the Bank, fairly present the financial condition of the Borrower as of the date hereof thereof and the results of the operations of the Borrower for the periods ending on such date, subject in each instance to any applicable year end adjustments, all in accordance with GAAP applied on a consistent basis, and since such date, there has been no material adverse change in such condition or operations and there has been no declaration or payment of dividends or distributions to any stockholders or members of the Borrower except as though made on and expressly permitted by this Agreement.
(v) Except as of such date except disclosed to the extent that such representations and warranties specifically refer Bank in writing, there are no actions, suits or proceedings pending or, to an earlier datethe knowledge of the Borrower, threatened against or affecting the Borrower or any properties or assets of the Borrower before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which, if determined adversely to the Borrower would have a material adverse effect on the financial condition, Assets, or operations of the Borrower.
(vi) The Borrower is not engaged in which case they shall be true and correct in all material respects on and as the business of such earlier date extending credit for the purpose of purchasing or carrying margin stock (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectswithin the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and except that the representations and warranties contained in Section 6.05 no part of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) proceeds of the Credit Agreement and Loan will be used to purchase or carry any margin stock or to extend credit to others for the date purpose of such financial statementspurchasing or carrying any margin stock.
(evii) No Default The Borrower is not a party to any indenture, loan or Event credit agreement or any lease or other agreement or instrument or subject to any restriction of Default shall exist immediately prior any kind which would have a material adverse effect on the business, properties, assets, operations or condition, financial or otherwise, of the Borrower or on the ability of the Borrower to and after giving effect to (i) carry out its obligations under this Amendment and (ii) any Credit Extension made in connection herewithAgreement, the Security Documents or the Notes, except for license agreements which by their terms restrict the pledge of or an encumbrance or assignment of the license.
Appears in 1 contract
Representations and Warranties of the Borrower. 7.1. The Borrower hereby represents and warrants to the Lender as follows:
(a) 7.1.1. The executionBorrower is duly organized and validly existing under the laws of the State of Israel, with full power and authority to carry on its business and to own or lease and to operate all of its properties as and in the places where such business is conducted and such properties are owned, leased or operated.
7.1.2. The Borrower has the corporate power and authority to execute and deliver this Agreement, to perform fully its obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery and performance by the Borrower of this Agreement, and the Amendment has consummation of the transactions contemplated hereby, have been duly authorized by all necessary requisite corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the . The Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes this Agreement, which is a legal, valid and binding obligations obligation of the Borrower, enforceable against the Borrower it in accordance with its termsterms except (x) as limited by applicable bankruptcy, except insolvency, reorganization, moratorium or other laws affecting enforcement of creditors` rights, (y) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (z) to the extent the enforceability thereof of any indemnification provisions may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally laws. The Borrower hereby covenants and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approvalundertakes to the Lender, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority for so long as the Loan Amount or any other Person is part thereof remains outstanding (or unconverted as the case may be), as follows:
7.1.3. The Borrower will do or cause to be done all actions necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained to preserve and are keep in full force and effecteffect its corporate existence, (b) filings comply with all laws applicable to perfect security interests granted pursuant Borrower, and use its best efforts to the Amendment and (c) approvalsavoid any event, consents, exemptions, authorizations, occurrence or other actions, notices or filings the failure to procure which would not condition that could reasonably be expected to have a Material Adverse Effect)material adverse effect upon the Borrower`s business.
(d) After giving effect 7.1.4. The Borrower will, except for the effects of reasonable wear and tear in the ordinary course of business, at all times maintain, preserve, protect and keep its property used or useful in the conduct of its business in good repair, working order and condition, and from time to this Amendmenttime make all needful and proper repairs, the representations renewals, replacements, betterments and warranties contained in each improvements thereto.
7.1.5. The Borrower will keep adequately insured, by financially sound reputable insurers, all property of the Credit Documents are true a character usually insured by similar entities and correct in all material respects on and carry such other insurance as of the date hereof as though made on and as of such date except is usually carried by similar entities to the extent that Borrower is not covered under Lender's insurance policies.
7.1.6. The Borrower will, promptly following its obtaining knowledge of the occurrence of a Default Event, notify the Lender in writing of such representations and warranties specifically refer to an earlier date, Default Event setting forth the details of such Default Event.
7.1.7. The Borrower will at all times maintain books of account in which case they all of its financial transactions are duly recorded in conformity with generally accepted accounting principles.
7.1.8. Borrower will promptly pay and discharge all lawful taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property, before the same shall become in default, as well as all lawful claims for labor, materials and supplies which, if unpaid, might become a lien or charge upon such properties or any part thereof; provided, however, that Borrower shall not be required to pay and discharge any such tax, assessment, charge, levy or claim so long as the validity thereof shall be true contested in good faith by appropriate proceedings and correct in all material respects Borrower, shall set aside on and as of its books adequate reserves with respect to any such earlier date (provided that representations and warranties that are qualified by materiality tax, assessment, charge, levy or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsclaim so contested.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The executionBorrower is a corporation duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment State of Delaware, and is properly qualified to do business and in good standing in, and where necessary to maintain its rights and privileges has been duly authorized by all necessary corporate complied with the fictitious name statute of, every jurisdiction where the failure to maintain such qualification, good standing or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not compliance could reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has execution, delivery and performance by the Borrower of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly executed authorized by all necessary corporate action, and delivered by do not contravene (i) the Borrower. The Amendment constitutes legal, valid and ’s charter or by-laws or (ii) law or any material agreement binding obligations on the Borrower or (iii) to the best of the Borrower’s knowledge, enforceable against any other agreement binding on the Borrower which, as to any agreement referred to in accordance with its termsthis clause (iii), except could be reasonably expected to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealinghave a Material Adverse Effect.
(c) No approval, consent, exemption, authorization, authorization or approval or other action by, or and no notice to, to or filing with, (i) any Governmental Authority governmental authority or regulatory body or (ii) any other Person third party under any material agreement binding on the Borrower or (iii) to the best of the Borrower’s knowledge, under any other agreement binding on the Borrower, is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment (Agreement or the Notes to be delivered by it, other than (a) as those authorizations or approvals or actions that have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings that have been made or, in the case of any third party under an agreement described in clause (iii), except to the extent that failure to procure which would obtain such authorization or approval or action, or make such notice or filing could not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this AmendmentThis Agreement has been, the representations and warranties contained in each of the Credit Documents are true Notes to be delivered by it when delivered hereunder will have been, duly executed and correct in all material respects on delivered by the Borrower. This Agreement is, and as each of the date hereof as though made on Notes when delivered hereunder will be, the legal, valid and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 binding obligation of the Credit Agreement shall be deemed Borrower enforceable against the Borrower in accordance with their respective terms, subject to refer applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) general principles of the Credit Agreement and to the date equity, regardless of such financial statementswhether considered in a proceeding in equity or at law.
(e) No Default The Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2004, and the related Consolidated statements of income and cash flows of the Borrower 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 Borrower and its Subsidiaries as at September 30, 2004, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the six months then ended, duly certified by the chief financial officer or Event treasurer of Default shall exist immediately the Borrower, copies of which have been furnished to each Lender, fairly present in all material respects, subject, in the case of said balance sheet as at September 30, 2004, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments and the absence of footnotes, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since March 31, 2004, there has been no Material Adverse Change, except as disclosed in public filings made with the Securities and Exchange Commission prior to and after giving effect October 28, 2004.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) this Amendment and is reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Credit Extension made Note or of the consummation of the transactions contemplated hereby, and there has been no material adverse change in connection herewiththe status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described in public filings with the Securities and Exchange Commission prior to October 28, 2004.
(g) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used in a manner that would violate, or result in a violation of, such Regulation U.
(h) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended. The Borrower is not a “holding company” or a “subsidiary” of a “holding company” as defined in the Public Utility Holding Company Act of 1935, as amended.
(i) The Borrower is, individually and together with its Subsidiaries, Solvent. “Solvent” means, with respect to any Person on a particular date, that on such date (i) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (ii) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (iii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (iv) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Appears in 1 contract
Sources: Credit Agreement (Computer Associates International Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Authority that, as follows:
of the date of execution of this Loan Agreement and as of the date of delivery of the Notes to the initial purchasers thereof (a) such representations and warranties to remain operative and in full force and effect regardless of the issuance of the Notes or any investigations by or on behalf of the Authority or the results thereof): The Borrower is a nonprofit public benefit corporation duly incorporated and in good standing under the laws of the State, and has full legal right, power and authority to enter into this Loan Agreement, and to carry out all of its obligations under and consummate all transactions contemplated by this Loan Agreement, and by proper corporate action has duly authorized the execution, delivery and performance by of this Loan Agreement. The officers of the Borrower of executing this Loan Agreement are duly and properly in office and fully authorized to execute the Amendment same. This Loan Agreement has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any orderauthorized, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes This Loan Agreement, as and when assigned to the Trustee pursuant to the Indenture, will constitute the legal, valid and binding obligations agreement of the Borrower, Borrower enforceable against the Borrower by the Trustee in accordance with its termsterms for the benefit of the Holders of the Notes and the Banks, except and any rights of the Authority and obligations of the Borrower not so assigned to the extent Trustee constitute the enforceability thereof legal, valid, and binding agreements of the Borrower enforceable against the Borrower by the Authority in accordance with their terms; except in each case as enforcement may be limited by applicable Debtor Relief Laws bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and generally, by the application of equitable principles of law (regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy. The execution and delivery of this Loan Agreement, the consummation of the transactions herein and therein contemplated and the fulfillment of or at lawcompliance with the terms and conditions hereof and thereof, will not conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under the articles of incorporation of the Borrower, its bylaws, any applicable law or administrative rule or regulation, or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, lease, contract or other agreement or instrument to which the Borrower is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower (except for any lien, charge or encumbrance expressly created herein or in the Indenture in favor to the Authority or the Trustee,) which conflict, violation, breach, default, lien, charge or encumbrance might have consequences that would materially and implied covenants adversely affect the consummation of good faith the transactions contemplated by this Loan Agreement, or the financial condition, assets, properties or operations of the Borrower No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity support to or for the account of the Borrower, and fair dealing.
(c) No approval, no consent, exemptionpermission, authorization, order or other action by, or notice tolicense of, or filing or registration with, any Governmental Authority governmental authority (except with respect to any state securities or any other Person “blue sky” laws) is necessary or required in connection with the execution, delivery or and performance byof this Loan Agreement, or enforcement againstthe consummation of any transaction herein or therein contemplated, or the Borrower fulfillment of this Amendment (other than (a) or compliance with the terms and conditions hereof or thereof, except as have already been obtained or made and as are in full force and effect. There is no action, (b) filings to perfect security interests granted pursuant suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending, or to the Amendment and (c) approvalsknowledge of the Borrower, consentsafter reasonable investigation, exemptionsthreatened, authorizationsagainst or affecting the Borrower or the assets, properties or operations of the Borrower which, if determined adversely to the Borrower or its interests, would have a material adverse effect upon the consummation of the transactions contemplated by, or the validity of, this Loan Agreement, or upon the financial condition, assets, properties or operations of the Borrower, and the Borrower is not in violation or default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) with respect to any order or decree of any court or any law, order, regulation or demand of any federal, state, municipal or other actionsgovernmental authority, notices which violation or filings default might have consequences that would materially and adversely affect the failure consummation of the transactions contemplated by this Loan Agreement, or the financial condition, assets, properties or operations of the Borrower. All tax returns (federal, state and local) required to procure be filed by or on behalf of the Borrower have been filed, and all taxes shown thereon to be due, including interest and penalties, except such, if any, as are being actively contested by the Borrower in good faith, have been paid or adequate reserves have been made for the payment thereof which reserves, if any, are reflected in the audited financial statements described therein. No written information, exhibit or report furnished to the Authority by or on behalf of the Borrower in connection with the negotiation of this Loan Agreement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Borrower has not made any independent investigation or inquiry into the truth, accuracy or completeness of any report written or provided by any third party. The Borrower is an organization described in Section 501(c)(3) of the Code and is exempt from federal income tax under Section 501(a) of the Code, except for unrelated business taxable income under Section 511 of the Code, and is not a private foundation as described in Section 509(a) of the Code. The proceeds of the Loan will be used by the Borrower solely to satisfy one or more of its charitable purposes, which have been previously recognized by the Internal Revenue Service as bona fide charitable purposes. The Borrower has full power and authority to carry on its business as now being conducted and to enter into this Loan Agreement and the transactions contemplated therein. All financial statements and information heretofore delivered by or on behalf of the Borrower to the Authority fairly and accurately present the financial position of each respective entity at such date and the results of operations for the year ended on such date. Since the date of such statements, there has been no material adverse change in the financial condition or results of operations of the Borrower or other subjects of such statements. The purposes, character, activities, and methods of operation of the Borrower have not changed since its organization and are not different from the purposes, character, activities and methods of operation contemplated at the time of its determination by the Internal Revenue Service to be an organization described in Section 501(c)(3) of the Code; the Borrower has not or will not divert any part of its corpus or income for a purpose or purposes other than the purpose or purposes for which it is organized or operated; the Borrower has not operated, nor will it operate, in a manner that would result in its being classified as an “action” organization within the meaning of Section 1.501(c)(3)-(1)(c)(3) of the Regulations, including, but not reasonably limited to, promoting or attempting to influence legislation by propaganda or otherwise as a substantial part of its activities; none of its directors, officers, or any related Persons, or any other Person having a private or professional interest in the Borrower’s activities has acquired or received, nor will such Persons be expected allowed to have acquire or receive, directly or indirectly, any of the Borrower’s goods, services, income or assets, without fair compensation or consideration received in exchange therefor; it has not received any indication or notice to the effect that the Borrower’s exemption from federal income taxation under Section 501(c)(3) of the Code has been revoked or modified, or that the Internal Revenue Service is considering revoking or modifying such exemption, and such exemption is still in full force and effect; the Borrower has not devoted or will not devote more than an insubstantial part of its activities in furtherance of a Material Adverse Effect).
(dpurpose other than an exempt purpose within the meaning of Section 501(c)(3) After giving effect to of the Code. Except as provided in the Indenture and this AmendmentLoan Agreement, the representations Borrower shall not pledge or otherwise encumber, or permit the pledge or encumbrance of, any money, investment, or investment property pledged as security for payment of any amounts due under this Loan Agreement nor shall the Borrower establish any segregated reserve or similar fund for such purpose and warranties contained shall not prepay any such amounts in advance of the Maturity Date of the Notes. The Borrower has made and shall continue to make all required contributions to all employee benefit plans, if any, and does not have knowledge of any material liability which has been incurred by the Borrower or remains unsatisfied for any taxes or penalties with respect to any employee benefit plan or any multi‑employer plan, and each such plan has been administered in compliance with its terms and the applicable provisions of ERISA and any other federal or state law. [Other than as disclosed to the Authority and expressly subordinated,] the Borrower has no contingent liabilities or obligations payable from the Deferral Amounts other than its obligations hereunder. The Borrower has no Senior Loans, as defined in the MOU. The Borrower has taken all steps necessary under applicable to qualify for the receipt of the Pledged Revenues, including the Deferral Amounts, and is eligible to receive the Deferral Amount described in the Intercept Schedule. The Deferral Amounts and the right of the Borrower to receive them is not subject to any lien, charge or encumbrance of any kind other that the lien expressly created herein in favor of the Trustee for the benefit of the Noteholders and the Banks. The Borrower has not entered into this transaction with the actual intent to hinder, delay, or defraud any creditor, and the Borrower has received reasonably equivalent value in exchange for its obligations under this Loan Agreement. The fair saleable value of the Borrower’s assets exceeds and will, immediately following the execution and delivery of this Loan Agreement, exceed the Borrower’s total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The fair saleable value of the Borrower’s assets is greater than the Borrower’s probable liabilities, including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured. The Borrower does not intend to, or does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of the Borrower). The Borrower is not (1) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended; (2) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (3) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money. The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock, within the meaning of Regulations T, U and X of the Federal Reserve Board, as applicable, or extending credit for the purpose of purchasing or carrying margin stock, and no part of the proceeds of Loan will be used to buy or carry any margin stock. The Borrower reasonably believes that the Deferral Amounts will be sufficient (without any other borrowing) during the term of the Loan to pay the principal of and interest on the Loan. During the term of the Loan, the Borrower will receive or otherwise have (without additional borrowing) sufficient funds to repay and discharge the Loan, based on all funds received by the Borrower and future projections upon historical experience and reasonable expectations. The Borrower is a “participating party” as defined in the Act. The sum of the amount borrowed to finance working capital and the interest payable on the working capital for the Borrower does not exceed 85 percent of the estimated amount of income, revenue, cash receipts, and other funds to be received by the Borrower, which will be available during the term of the Loan, for the repayment of the Loan and interest on the Loan. The Borrower acknowledges, represents and warrants that it understands the nature and structure of the transactions relating to the financing of its working capital; that it is familiar with the provisions of all of the documents and instruments relating to such financing to it is a party or of which it is a beneficiary; that it understands the risks inherent in such transactions; and that it has not relied on the Authority for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by this Loan Agreement and the Indenture or otherwise relied on the Authority for any advice. The Borrower acknowledges, represents and warrants that none of its charter schools participating the Program is subject to renewal of its charter on or before June 30, 2021 and expects all charter schools to be operating and in good standing with its charter authorizer through at least the Maturity Date. The Borrower, if the Notes related to its Loan are issued as Series 2021A Notes, has budgeted facilities expenditures for [describe facilities in plan] for the 2020-21 Fiscal Year in an amount not less than the amount of the Loan, and further that satisfies one of these four criteria: Located in a school district and/or county where at least 50% of students have not met the State standard for proficiency in either math or language on the state assessment Located in a school district and/or county where at least 15% of public schools have been identified for improvement or corrective action Located in a school district and/or county with 60% or more of the student population is eligible for free or reduced-price meals (“FROM”) At least 50% of current or projected students enrolled at the charter school are eligible for FRPM. The Borrower has, as to each of its charter schools participating the Credit Documents are true Program, filed both an Intercept Notice and correct an EFT Form with the Controller in accordance with Section 17199.4 of the Act, a copy of which is attached hereto as Exhibit A and Exhibit B hereto. [With respect to other indebtedness of the Borrower: With respect to any Senior Loan, the Borrower has prepaid any and all material respects on and as of its debt service payments coming due during the period from the date hereof as though through and including the Maturity Date of the Notes which would otherwise have been payable or due prior to the Maturity Date of the Notes by means of an irrevocable deposit made on and as under the terms of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects Senior Loan on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and prior to the date of such financial statements.
(e) No Default or Event issuance of Default shall exist immediately prior to the Notes. [IT IS EXPECTED THAT THERE ARE NO OTHER CLAIMS ON THESE REVENUES] The Borrower has not and after giving effect to (i) this Amendment will incur any additional indebtedness constituting a Senior Loan between the date of issuance of the Notes and (ii) the Maturity Date of the Notes. With respect material indebtedness other than any Credit Extension made in connection herewith.Senio
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties of the Borrower. The Borrower represents and warrants to each of the Secured Parties on and as of the Closing Date, each Borrowing Date and the last day of each Settlement Period, as follows:
(a) The the Borrower is duly organized and validly existing in good standing under the laws of the State of Delaware, with full power and authority to own and operate its assets and properties, conduct the business in which it is now engaged and to execute and deliver and perform its obligations under this Agreement and the other Facility Documents to which it is a party;
(b) the Borrower is duly qualified to do business and is in good standing in each jurisdiction in which the nature of its business, assets and properties, including, without limitation, the performance of its obligations under this Agreement and the other Facility Documents to which it is a party, requires such qualification, except where the failure to be so qualified could not give rise to the reasonable possibility of a Material Adverse Effect;
(c) the execution, delivery and performance by the Borrower of the Amendment has Facility Documents to which it is a party and the other instruments and agreements contemplated thereby are within its powers and have been duly authorized by all necessary corporate or other organizational requisite action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to by the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes Borrower and constitute the legal, valid and binding obligations of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms;
(d) neither the execution and delivery by the Borrower of this Agreement, the other Facility Documents to which it is a party, or any instrument or agreement referred to herein or therein, or contemplated hereby or thereby, nor the consummation of the transactions herein or therein contemplated, nor compliance with the terms, except conditions and provisions hereof or thereof by it, will (i) conflict with, or result in a breach or violation of, or constitute a default under its, LFSI's, the Parent's, any Advisor's, any of their respective Subsidiaries' or LMIC's organizational documents, (ii) conflict with or contravene any (A) Applicable Law, (B) any contractual restriction binding on or affecting the Borrower, LFSI, the Parent, any Advisor, any of their respective Subsidiaries, LMIC or any of their respective assets or properties, (C) any order, writ, judgment, award, injunction or decree binding on or affecting the Borrower, LFSI, the Parent, any Advisor, any of their respective Subsidiaries, LMIC or any of their respective assets or properties, (iii) result in a breach or violation of, or constitute a default under, or permit the acceleration of any obligation or liability in, or but for any requirement of the giving of notice or the passage of time (or both) would constitute such a conflict with, breach or violation of, or default under, or permit any such acceleration in, any contractual obligation or any agreement or document to which it, LFSI, the extent Parent, any Advisor, any of their respective Subsidiaries or LMIC is a party or by which the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles Borrower, LFSI, the Parent, any Advisor, any of law their respective Subsidiaries, LMIC or any of their respective properties are bound (regardless or to which any such obligation, agreement or document relates), (iv) result in any Adverse Claim upon any of whether enforcement is sought the Assigned Collateral, or (v) result in equity the termination of any Distribution Agreement or at law) and implied covenants of good faith and fair dealing.Distribution Plan;
(ce) No approvalthe Borrower has obtained all necessary Governmental Authorizations and Private Authorizations, consentand made all Governmental Filings necessary for the execution, exemptiondelivery and performance by the Borrower of this Agreement, authorizationthe other Facility Documents to which it is a party and the agreements and instruments contemplated hereby or thereby, and no Governmental Authorization, Private Authorization or other action byGovernmental Filing which have not been obtained or made, is required to be obtained or notice to, or filing with, any Governmental Authority or any other Person is necessary or required made by it in connection with the execution, delivery or performance byof this Agreement and the other Facility Documents, including without limitation the pledge of the Assigned Collateral contemplated by this Agreement;
(f) the representations and warranties of the Distributor and each Advisor set forth in the Facility Documents are true and correct;
(g) there are no pending or, to the best of the Borrower's knowledge, threatened investigations, actions, suits or enforcement against, proceedings involving the Borrower which give rise to a reasonable possibility of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).;
(dh) After giving effect the Prospectus, each Investor Report, each Notice of Borrowing and all other written information, reports and statements provided by or on behalf of the Borrower or any Affiliate of the Borrower to any Secured Party for purposes of or in connection with this AmendmentAgreement, the representations other Facility Documents or the transactions contemplated hereby or thereby is, and warranties contained in each all such information, notices, reports and statements hereafter provided by or on behalf of the Credit Documents are true Borrower or any of its Affiliates to any Secured Party will be true, correct and correct complete in all material respects on the date such information, notice, report or statement is stated or certified and on and as of the date hereof as though such information, notice, report or statement is stated or certified to, such information, notice, report or statement does not contain, and will not contain, any misrepresentation of a material fact or any omission to state therein matters necessary to make the statements made on and as of such date except to therein not misleading in any material respect when considered in its entirety;
(i) the extent that such representations and warranties specifically refer to an earlier date, Borrower is in which case they shall be true and correct compliance in all material respects with Applicable Law;
(j) the Parent owns directly or indirectly all of the issued and outstanding capital stock of Newport Fund Management, Inc. and ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇ Incorporated, the Parent directly owns all of the issued and outstanding capital stock of LFSI and Crabbe Huson Group, Inc., LFSI is the sole member of the Borrower, the Borrower directly owns all of the issued and outstanding capital stock of Colonial Management Associates, Inc., and Colonial Management Associates, Inc. directly owns all of the issued and outstanding stock of the Distributor;
(k) it and its Subsidiaries have fulfilled their obligations, if any, under the minimum funding standards of ERISA and the Code with respect to any Plan or Multi Employer Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code, and has not incurred any liability to the Pension Benefit Guaranty Corporation, a Multi Employer Plan or a Plan under Title IV of ERISA other than a liability to the Pension Benefit Guaranty Corporation for premiums under Section 407 of ERISA;
(l) its obligations under this Agreement to make payments to the Secured Parties rank at least equally with indebtedness of the Borrower which is not contractually subordinated;
(m) on each Borrowing Date and as immediately after the making of each Advance, it is in full compliance with the Borrowing Base Test and the other conditions specified in Article III;
(n) the Borrower is taking all reasonable actions necessary to mitigate the effect of the Year 2000 Problem on its computer systems;
(o) the Borrower has filed all United States Federal income tax returns and all other material tax returns which are required to be filed by it, if any, and has paid all taxes due pursuant to such earlier date (provided that representations returns, if any, or pursuant to any assessment received by it, except for any taxes or assessments which are being contested in good faith by appropriate proceedings and warranties that are qualified by materiality or reference with respect thereto adequate reserves have been established in accordance with GAAP and which could otherwise not give rise to a reasonable possibility of a Material Adverse Effect shall be true Effect; and correct in all respects)the charges, accruals and except that reserves on the representations and warranties contained in Section 6.05 books of the Credit Agreement shall be deemed to refer to Borrower in respect of taxes or other governmental charges, if any, are, in the most recent financial statements furnished pursuant to Section 7.01(a) and (b) opinion of the Credit Agreement and to the date of such financial statements.Borrower, adequate;
(ep) No Default the statement of assets and liabilities of the Borrower as at December 31, 1998, certified by Ernst & Young, LLP, certified public accountants, fairly present in conformity with GAAP the financial position of the Borrower at such date and since such date there has been no material adverse change in the business, financial position or Event results of Default shall exist immediately prior operations of the Borrower; and
(q) the Shares of each Fund can only be exchanged for the Shares of another Fund in respect of which the Agent has a first priority perfected security interest in the Receivables relating to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithsuch Fund.
Appears in 1 contract
Sources: Revolving Credit Agreement (Liberty Financial Companies Inc /Ma/)
Representations and Warranties of the Borrower. The Borrower hereby declares, represents and warrants as followsand shall be deemed to subsist from the date of this facility letter/Agreement until Credit Facilities and Said Dues are repaid in full:
(a) The execution, delivery and performance by Borrower is duly organised under the Borrower provisions of the Amendment Holy See Companies Act, 1956, and existing India under the laws of Nun , and has been duly authorized by all necessary corporate or other organizational action the power and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation authority to which the Borrower carry on its business as it is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award now being carried on and to which the Borrower or create security over its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower property and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.assets;;
(b) The Amendment has All corporate and other action under law and practice, as may be applicable on the part of the Borrower, its directors or shareholders, as may be applicable and as may be necessary for the due authorisation, execution and delivery of this Agreement and the security documents, and performance of the obligations hereunder, and the documents to be executed in pursuance hereof, has/have been duly taken and adopted and is/are in full force and effect;
(c) Borrower is aware that the Lender is granting the Credit Facilities on the basis of and on the faith of the representations made by the Borrower and believing the same to be true;
(d) The Borrower has obtained all permissions, approvals, consents or sanctions, if any required, of the government or any government or statutory body, agency or authority to enable it to lawfully carry on its business and availing of the Credit Facilities, and will at all times till the Said Dues are fully repaid, keep all such permissions, approvals, consents or sanctions, valid and subsisting;
(e) The officers of the Borrower executing this Agreement and the documents executed in the pursuance hereof, are duly and properly in office and fully authorized to execute the same and the present Agreement shall not be affected by reason of any absence of or deficiency or excess or irregularity in the exercise of any powers of the Borrower and its officers;
(f) The Agreement and the documents to be executed in pursuance hereof when executed and delivered by the Borrower. The Amendment constitutes legaldelivered, will constitute valid and binding obligations of the Borrower, enforceable ;
(g) It has not taken any corporate action nor have any steps been taken or legal proceeding been taken or legal proceedings been initiated or threatened against the Borrower for its winding-up, dissolution, administration, reorganization or for appointment of receiver, administrator of Borrower for all or any of its assets or undertakings;
(h) As of the date of this Agreement, there is no litigation, proceeding or dispute pending including but not limited to proceeding under Income Tax Act or threatened against the Borrower, the adverse determination of which might substantially affect the Borrower’s ability to repay the Said Dues or have a materially adverse effect on the financial condition of the Borrower;
(i) That all the security created in accordance with its termsfavor of the Lender are the absolute property of and at the sole disposal of the Borrower and free from any prior charge or encumbrance (except in favour of the Lender, except to if any), and undertakes that all future property shall likewise be the extent unencumbered, marketable and disposal property of the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingBorrower.
(cj) No approvalThe execution and delivery of this Agreement and the performance of its obligations hereunder does not (i) contravene any applicable law, consentstatute or regulation or any judgment or decree to which the Borrower is subject, exemption(ii) conflict or result in any breach of any of the terms of or constitute default of any covenant, authorizationconditions and stipulations under any existing agreement to which the Borrower is a party or (iii) conflict or contravene any provision of the Memorandum and Articles of Association or the Incorporation Documents of the Borrower;
(k) There has been no material adverse change in the financial condition of the Borrower, nor has any event which is prejudicial to the interest of the Lender taken place since the date of the latest audited financials of the Borrower which is likely to materially and/or adversely affect the ability of the Borrower to perform all or other action by, any of its obligations under this Agreement;
(l) The Borrower will not seek to claim or notice to, or filing withrecover from the Lender on any grounds whatsoever and/or in any circumstances whatsoever, any Governmental Authority purported damages or compensation, direct, indirect or consequential, for any other Person is necessary acts or required actions whatsoever of the Lender hereunder and/or in connection with respect of the executionSaid Dues , delivery or performance by, or enforcement against, and the Borrower hereby expressly waives any right to seek or make any such claim or recovery on any grounds whatsoever;
(m) The Borrower will use the Credit Facilities solely for the purpose as specified under this Agreement and in terms of this Amendment (other than (a) as have already been obtained the sanction terms and are in full force conditions and effect, (b) filings to perfect security interests granted pursuant shall confirm the same to the Amendment Lender, as may be required by the Lender;
(n) The Borrower undertakes and declares that the Credit Facility availed are within the borrowing powers as mentioned in Section 180(1) (c) approvalsof the Companies Act, consents2013;
(o) Borrower declares that the Security Provider has complied with the requirements mentioned in Section 180(1)(a) of the Companies Act, exemptions2013
(p) Create or permit to subsist any encumbrance, authorizationsmortgage or charge over all or any of the present or future properties, assets or revenues of the Borrower other actionsthan the already existing charges in favour of other financial institutions and Lenders which shall have been disclosed in writing to the Lender, notices or filings without the failure prior written consent of the Lender;
(q) Borrower undertakes that Lender does not have obligation to procure which would not reasonably be expected meet further requirement of the borrower on account of growth in business etc.;
(r) Borrower is aware and undertakes that the Lender may obtain the information with respect to have a Material Adverse Effect)Borrower’s Credit Facilities including derivatives and unhedging of foreign exchange exposure from Lender from time to time.
(ds) After giving effect to this AmendmentThere are no charges, the representations and warranties contained in each or liens of whatsoever nature against any of the Credit Documents are true Borrower’s Hypothecated Assets and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsFixed Assets/Property.
(et) No Default or Event of Default The Borrower shall exist immediately prior maintain such margins against Fixed Assets and Hypothecated Assets including stock and receivables as may be prescribed by the Lender, from time to time.
(u) The Borrower shall execute all documents and after giving do all acts, deeds and things, at its cost and expense, in such manner as the Lender may require to give full effect to (i) this Amendment and (ii) any Credit Extension made in connection herewiththese presents including creation of security herein envisaged.
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower hereby represents and warrants to Lender:
(i) The Borrower is a corporation (i) duly organized and validly existing under the laws of the State of Ohio and (ii) qualified to transact business in the State of Indiana and (iii) in compliance with the laws and all applicable regulatory requirements of the State of Indiana and all other jurisdictions in which Borrower conducts business.
(ii) The Borrower (a) has full power and authority to originate and pledge Mortgage Loans and to execute, deliver and perform, and to enter into and consummate, all transactions contemplated by this Agreement and each Request for an Advance executed hereunder and (b) has duly authorized the execution, delivery and performance of this Agreement and will, at or prior to the execution and delivery thereof, have duly authorized the execution, delivery and performance of each Request for an Advance and Assignment of Mortgage executed hereunder.
(iii) This Agreement, each Request for an Advance and all other documents and instruments executed by Borrower hereunder constitute or will constitute, the valid and binding obligation of the Borrower and do not and will not conflict with, or constitute a breach of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms default under, any existing applicable law, rule, regulation, any memorandum of the Borrower’s Organization Documents; (b) conflict understanding with any regulatory authority or result in any breach instrument or contravention of (i) any Contractual Obligation agreement to which the Borrower is a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to by which the Borrower or any substantial portion of its Property assets is subjectbound; and there has not occurred any Default or Event of Default hereunder.
(civ) result in the creation The balance sheet of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendmentstatement of operations and sources and application of funds of the Borrower heretofore furnished to Lender, exceptare the most recently available quarterly balance sheet, statement of operations and sources and application of funds of the Borrower and fairly present the financial condition, results of operations and sources and application of funds of the Borrower as of the date specified therein and for the period (specified therein) then ended, in conformity with generally accepted accounting principles or other commercially reasonable methods consistently applied, and subsequent to the date of said financial statements there has been no material adverse change in the financial condition or the business or operations of the Borrower.
(v) The proceeds of each Advance will be used exclusively to provide financing to originate or carry Mortgage Loans.
(vi) Borrower is approved and in good standing with the Agencies or any other applicable governing agency from whom Borrower has, or contemplates obtaining, a Take-out with full right to take such actions and discharge such responsibilities as are conferred by such status, and in particular to originate the Mortgage Loans and deliver them to the Investor.
(b) With respect to each Mortgage Loan, as of the Closing Date with respect to any Advance, Borrower hereby represents and warrants to Lender:
(i) The information pertaining to such Mortgage Loan set forth in the Mortgage Loan Schedule is true, correct and complete to the best of Borrower’s knowledge.
(ii) The Borrower has not advanced funds, or induced, solicited or knowingly received any advance of funds from a party other than the owner of the Mortgaged Property, directly or indirectly, for the payment of any amount required by the Mortgage Loan and there has been no delinquency in any payment by the mortgagor thereunder.
(iii) There are no delinquent taxes, ground rents, water charges, sewer rents, assessments or other outstanding charges affecting the Mortgaged Property.
(iv) The terms of the Note and the Mortgage have not been impaired, waived, altered or modified in any respect. No mortgagor has been released, in whole or in part.
(v) The Note and the Mortgage are not subject to any right of rescission, set-off, abatement, diminution, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of the Note or the Mortgage, or the exercise of any right thereunder, render the Note or the Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, abatement, diminution, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, abatement, diminution, counterclaim or defense has been asserted with respect thereto.
(vi) All improvements constituting a part of the Mortgaged Property are insured by an insurer acceptable to the applicable Agency and generally acceptable to prudent mortgage lending institutions against loss by fire and such other risks as may be included in the broad form of extended insurance coverage, as may be available from time to time, and such other hazards as are customary in the area where the Mortgaged Property is located, in an amount which is at least equal to the maximum insurable value of the improvements constituting a part of the Mortgaged Property. If the Mortgaged Property is in an area then identified in the Federal Register by the Flood Emergency Management Agency as having special flood hazards (and such flood insurance is then available), there is in effect a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration with a financially responsible insurance carrier acceptable to the applicable Agency, in an amount representing coverage not less than the maximum amount of insurance which is available under the Flood Disaster Protection Act of 1973, as amended. All such individual insurance policies (collectively, the “hazard insurance policy”) contain a “standard” or “New York” mortgagee clause naming the Borrower, its successors and assigns as mortgagee, provide for at least 30 days’ prior written notice to the Borrower of any cancellation thereof, and all premiums thereon have been paid. The Mortgage obligates the mortgagor thereunder to maintain the hazard insurance policy at the mortgagor’s cost and expense, and upon the mortgagor’s failure to do so, authorizes the holder of the mortgage to obtain and maintain such insurance at the mortgagor’s cost and expense and to seek reimbursement therefor from the mortgagor.
(vii) Any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws applicable to the Mortgage Loan have been complied with.
(viii) The Mortgage has not been satisfied, canceled, subordinated or rescinded, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release.
(ix) Unless otherwise notified to Lender by the Borrower and agreed to by Lender in respect of any Mortgage Loan, the mortgagor has fee simple estate in and to the Mortgaged Property and the Mortgaged Property consists of a single parcel of real property with a detached single family residence erected thereon, or an individual residential condominium unit, all of which constitutes real property under the laws of the State in which the Mortgaged Property is located and Borrower is qualified to do business.
(x) The Mortgage is a valid, subsisting and enforceable first lien on the Mortgaged Property (including, without limitation, all buildings constituting a part of the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems located in or affixed to such buildings, and all additions, alterations and replacements made at any time with respect to the foregoing). Such lien is subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording which are (i) acceptable to mortgage lending institutions generally and, in the case of clause a Mortgage Loan insured by the FHA or guaranteed by the VA, USDA or RHS, to the FHA, VA, USDA or RHS, (bii) specifically referred to in the lender’s title insurance policy delivered to Borrower and (iii) referred to or otherwise considered in the appraisal made for Borrower or which do not adversely affect the appraised value of the Mortgaged Property as set forth in such appraisal and (dc) onlyother matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage, as would not reasonably be expected the use, enjoyment, value or marketability of the related Mortgaged Property or, in the case of a Mortgage Loan insured by the FHA or guaranteed by the VA, USDA or RHS, prevent realization of the benefits provided by any FHA insurance or VA, USDA or RHS guaranty. Any security agreement, chattel mortgage or equivalent document related to have and delivered in connection with the Mortgage Loan establishes and creates a Material Adverse Effectvalid, subsisting and enforceable first lien and first priority security interest on the property described therein.
(bxi) The Amendment has been duly executed Note and delivered by the Borrower. The Amendment constitutes Mortgage are genuine, and each is the legal, valid and binding obligations obligation of the Borrowermaker thereof, enforceable against the Borrower in accordance with its terms, except to the extent as the enforceability thereof may be limited by applicable Debtor Relief Laws bankruptcy, insolvency or other similar laws affecting the enforcement of creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealinggenerally.
(cxii) No approvalAll parties to any agreement affecting the Mortgage Loan, consentincluding, exemptionbut not limited to, authorizationhad legal capacity to enter into such agreement and to execute and deliver such agreement and each such agreement has been duly and properly authorized, executed and delivered by such parties.
(xiii) The proceeds of the Mortgage Loan have been fully disbursed and there is no obligation or requirement for future advances thereunder by the holder of the Mortgage Loan, and any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with.
(xiv) Except as otherwise described in writing to Lender, the Note and the Mortgage have not been assigned or pledged by the Borrower except to Lender as provided herein. The Borrower or its agent, and, in the case of a Mortgage Loan originated by one of Borrower’s correspondents, Borrower’s correspondent and its agent, or other action bythe title company handling the closing of the Mortgage Loan, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required has had continuous sole and complete possession of all the documents in connection with the execution, delivery or performance by, or enforcement againstMortgage File prior to the Closing Date. At the time of the pledge of the Mortgage Loan to Lender, the Borrower had good and marketable title thereto.
(xv) In the case of this Amendment (other than a conventional Mortgage Loan, (a) the Loan-to-Value Ratio either (i) is not more than 80% or (ii) is not more than 95% and the excess over 80% is and will be insured by a policy of primary mortgage guaranty insurance issued by a mortgage guaranty insurer acceptable to FNMA or FHLMC until the Loan-to-Value Ratio is reduced below 80% or otherwise meets guidelines for an applicable FNMA or FHLMC product (i.e., DU Refi Plus), (b) the mortgage interest rate for the Mortgage Loan as set forth on the Mortgage Loan Schedule is net of any such insurance premium and (c) all provisions of any primary mortgage guaranty insurance policy have already been obtained and are being complied with and such policy is in full force and effect and all premiums due thereunder have been paid. Any Mortgage Loan subject to any such policy of primary mortgage guaranty insurance obligates the mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith.
(xvi) Each Mortgage Loan is covered by an American Land Title Association form of lender’s title insurance policy or other generally acceptable form of title insurance policy acceptable to the applicable Agency (and, in the case of a Mortgage Loan insured by the FHA or guaranteed by the VA, USDA or RHS, the FHA, VA, USDA or RHS, as the case may be), issued by a title insurer acceptable to the applicable Agency and qualified to do business in the state of the Mortgaged Property, insuring the Borrower, its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan. The Borrower is the sole insured under such lender’s title insurance policy, and such lender’s title insurance policy is in full force and effect. No claims have been made under such lender’s title insurance policy and no holder of the Mortgage Loan, (b) filings including the Borrower, has done or omitted to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure do anything which would not reasonably be expected to have a Material Adverse Effect)impair the coverage of such lender’s title insurance policy.
(dxvii) After giving effect If the Mortgage Loan is insured by the FHA or guaranteed by the VA, it shall be either (i) guaranteed by the VA to this Amendment, the representations maximum extent permitted by law for a veteran who has not used any part of his entitlement and warranties contained in each the uninsured portion thereof upon origination was not more than 75% or the original principal amount of the Credit Documents are true Mortgage Loan or (ii) fully insured by the FHA and correct in all material respects on necessary steps have been taken to make and as keep such guaranty or insurance valid, binding and enforceable, and such guaranty or insurance is the valid, binding and enforceable obligation of the date hereof VA or the FHA, as though made on and as of such date except the case may be, to the full extent that such representations and warranties specifically refer to an earlier datethereof, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality without surcharge, set-off or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsdefense.
(exviii) No Default There is no default, breach, violation, or Event event of Default shall exist immediately acceleration existing under the Note or Mortgage and no event which, with the passage of time or the giving of notice, or both, would constitute such a default, breach, violation or event of acceleration; and neither the Borrower nor any person having or having had an interest therein has waived any such default, breach, violation or event of acceleration.
(xix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that could give rise to any such lien) affecting the related Mortgaged Property which are or may be liens prior to, or equal to coordinate with, the lien of the related Mortgage and after giving effect the Mortgage requires the mortgagor promptly to cause any such liens, as well as liens which are junior to the lien of the Mortgage, to be removed.
(ixx) this Amendment All improvements which were considered in determining the appraised value of the related Mortgaged Property lie wholly within the boundary and building restriction lines of the Mortgaged Property and no improvements on adjoining properties encroach upon the Mortgaged Property in any respect so as to affect the marketability of the Mortgaged Property.
(iixxi) any Credit Extension made The Mortgage Loan was originated by the Borrower.
(xxii) The Note is payable monthly in connection herewithself-amortizing installments of principal and interest, with interest payable in arrears, providing for full amortization by maturity or a balloon payment, over an original term in compliance with the requirements of the applicable Agency. The original principal amount of the Note was not more than the amount prescribed by Lender. The Mortgage contains customary and enforceable provisions for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event the related Mortgaged Property is sold without the prior consent of the mortgagee thereunder.
(xxiii) The Mortgaged Property is free of damage and waste and there is no proceeding pending or, to the best of the knowledge of the Borrower, threatened, for the total or partial condemnation or taking by eminent domain thereof.
(xxiv) The Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby. There is no homestead or other exemption available to the mortgagor which would interfere with the right to sell the Mortgaged Property at a trustee’s sale or under a power of sale, or the right to foreclose the Mortgage.
(xxv) The Mortgage File relating to the Mortgage Loan contains all of the documents required by, and such documents are in the form required by all applicable underwriting guidelines.
(xxvi) The Mortgage File relating to the Mortgage Loan contains all of the documents required by, and a clear to close letter has been issued by the Investor’s underwrite
Appears in 1 contract
Sources: Mortgage Warehouse Loan and Security Agreement (Stonegate Mortgage Corp)
Representations and Warranties of the Borrower. The Borrower represents represents, covenants and warrants to the Lender as follows:
(a) The execution, delivery representations and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result warranties in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to Loan Agreement, the Borrower Mortgage and the Amendment, except, in the case other Loan Documents are true and correct as of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effectthis date.
(b) There is currently no Event of Default (as defined in the Loan Agreement) under the Loan Agreement, the Amended and Restated Note, the Mortgage or the other Loan Documents and the Borrower does not know of any event or circumstance which with the giving of notice or passing of time, or both, would constitute an Event of Default thereunder.
(c) The Amendment has been duly executed Loan Documents are in full force and delivered by effect and, following the Borrower. The Amendment constitutes execution and delivery of this Agreement, they continue to be the legal, valid and binding obligations of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except subject to the extent the enforceability thereof may be limited limitations imposed by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)equity.
(d) After giving effect to this Amendment, There has been no material adverse change in the representations and warranties contained in each financial condition of the Credit Documents are true and correct Borrower or any other party whose financial statement has been delivered to the Lender in all material respects on and as of connection with the Loan from the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of statement received by the Credit Agreement and to the date of such financial statementsLender.
(e) No Default As of this date, the Borrower has no claims, counterclaims, defenses, or Event set-offs with respect to the Loan or the Loan Documents as modified in this Agreement.
(f) The Borrower is validly existing under the laws of Default shall exist immediately prior the State of its formation or organization and has the requisite power and authority to execute and after giving effect deliver this Agreement and to (i) perform the Loan Documents as modified in this Amendment Agreement. The execution and (ii) any Credit Extension made delivery of this Agreement and the performance of the Loan Documents as modified in connection herewiththis Agreement have been duly authorized by all requisite action by or on behalf of the Borrower. This Agreement has been duly executed and delivered on behalf of the Borrower.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower Effective as of the Initial Closing Date, the date of each Advance, the Rent Commencement Date and the Punch List Completion Date, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) It is a national banking association and is duly organized and validly existing and in good standing under the laws of the United States of America and has the power and authority to enter into and perform its obligations under the Trust Agreement and (assuming due authorization, execution and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other Operative Agreements to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party and each other agreement, instrument and document to be executed and delivered by it on or before such date in connection with or as contemplated by each such Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party, either in its individual capacity or (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of Holders) as the Amendment Owner Trustee, as the case may be, has been duly authorized by all necessary corporate or other organizational action on its part and does not (a) contravene neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby, nor compliance by it with any of the terms and provisions thereof (i) does or will require any approval or consent of the Borrower’s Organization Documents; any trustee or holders of any of its indebtedness or obligations, (bii) conflict with does or will contravene any Legal Requirement relating to its banking or trust powers, (iii) does or will contravene or result in any breach of or contravention of (i) constitute any Contractual Obligation to which the Borrower is party default under, or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien upon any of its property under, (other than Permitted Liens); A) its charter or by-laws, or (dB) violate any Law applicable indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement or other agreement or instrument to the Borrower which it is a party or by which it or its properties may be bound or affected, which contravention, breach, default or Lien under clause (B) would materially and the Amendment, exceptadversely affect its ability, in its individual capacity or as the case of clause (b) Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or (div) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity does or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, will require any Governmental Authority or Action by any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.Governmental
Appears in 1 contract
Representations and Warranties of the Borrower. The Each of the Borrower and, if applicable, the Parent Guarantor hereby represents and warrants as follows:
(a) The execution, delivery and performance by the Borrower Each of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the AmendmentParent Guarantor (a) is duly organized or formed, exceptvalidly existing and, where applicable, in good standing under the case Laws of clause the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under this Amendment, the Amended and Restated Credit Agreement and the other Loan Documents to which it is a party and (c) is duly qualified to do business and, where applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (da) only(other than with respect to any Loan Party or any Material Subsidiary), as would clause (b)(i) or clause (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) The . This Amendment has been duly executed and delivered by the Borrower. The duly authorized officers of the Borrower and the Parent Guarantor, and this Amendment constitutes and the Amended Credit Agreement constitute legal, valid and binding obligations of the Borrower, Borrower and the Parent Guarantor and are enforceable against the Borrower and the Parent Guarantor in accordance with its their terms, except subject to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and by equitable subject to general principles of law (equity, regardless of whether enforcement is sought considered in a proceeding in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to As of the Amendment date hereof and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After after giving effect to the terms of this Amendment, (i) no Default has occurred and is continuing, and (ii) the representations and warranties of the Loan Parties contained in each of the Credit Loan Documents are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty is true and correct in all respects) on and as of the date hereof as though made on and as of such date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects on and as (except in the case of such earlier date (provided that representations and warranties that are a representation or warranty qualified by materiality or reference to Material Adverse Effect shall be or similar language, in which case such representation or warranty is true and correct in all respects), ) as of such earlier date.
(c) The Borrower:
(i) reaffirms and except that admits the representations validity and warranties contained in Section 6.05 enforceability of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Amended Credit Agreement and to the date other Loan Documents and all of such financial statements.its Obligations thereunder;
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) agrees and admits that it has no valid defenses to or offsets against any of its Obligations to the Administrative Agent, the L/C Issuers and the Lenders under the Amended Credit Extension made Agreement and the Notes; and
(iii) agrees and acknowledges that all references to the “Obligations” contained in connection herewiththe Loan Documents include the Obligations under the Amended Credit Agreement.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower In order to induce parties hereto to enter into this Amendment, each of the SPV and the Servicer hereby represents and warrants as followsthat:
(a) The execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each Section 4.1 of the Credit Documents Second Tier Agreement are true and correct in all material respects (except those representations and warranties qualified by materiality or by reference to a material adverse effect, which are true and correct in all respects and except to the extent such representations and warranties are incorrect as a result of the occurrence of the Specified Deposits) as though made on and as of the date hereof as though and shall be deemed to have been made on and as of such the date except to the extent that hereof (unless such representations and warranties specifically refer to an earlier datea previous day, in which case case, they shall be true complete and correct in all material respects (or, with respect to such representations or warranties qualified by materiality or by reference to a material adverse effect, complete and correct in all respects) on and as of such earlier date (previous day); provided that representations and warranties that are qualified by materiality no such representation, warranty, or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement certification hereunder shall be deemed to refer be incorrect or violated to the most recent financial statements furnished pursuant extent any affected Receivable is subject to Section 7.01(a) a Deemed Collection and all required amounts with respect to which have been deposited into a Blocked Account or transferred to the Agent);
(b) no Termination Event or Potential Termination Event exists (except to the extent the occurrence of the Credit Agreement and to the date of such financial statements.
(eSpecified Deposits constitutes a Termination Event or Potential Termination Event) No Default or Event of Default shall exist immediately prior to and or, after giving effect to the amendments contained herein, will result from the execution of this Amendment; and
(ic) this Amendment has been duly authorized by proper proceedings of the SPV, the Initial Originator, the Servicer and (ii) any Credit Extension made Colliers and constitutes the legal, valid and binding obligation of such party enforceable against such party in connection herewithaccordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Colliers International Group Inc.)
Representations and Warranties of the Borrower. The Borrower represents and warrants to the Administrative Agent and Increasing Lenders as follows:
(a) The execution, delivery and performance by the Borrower of this Amendment and the Amendment has been duly authorized transactions contemplated hereby do not and will not, by all necessary corporate the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval or violate any Applicable Law relating to the Borrower, (ii) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws or other organizational action and does not (a) contravene the terms documents of the Borrower’s Organization Documents; , (biii) conflict with or with, result in a breach of or constitute a default under any breach indenture, agreement or contravention of (i) any Contractual Obligation other instrument to which the Borrower is a party or (ii) by which any order, injunction, writ of its properties may be bound or decree of any Governmental Authority or any arbitral award Approval relating to which the Borrower except to the extent that any such conflict, breach or its Property is subject; default could not individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (civ) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower other than Liens arising under the Loan Documents or (v) require any consent or authorization of, filing with (other than Permitted Liensfilings required to be made with the SEC); , or (d) violate other act in respect of, an arbitrator or Governmental Authority, and no consent or approval of any Law applicable to other Person in connection with the Borrower execution, delivery, performance, validity or enforceability of this Amendment other than consents or approvals that have been obtained and the Amendmentthat are still in force and effect or third party approvals or consents which, except, in the case of clause (b) if not made or (d) only, as would obtained could not reasonably be expected to have a Material Adverse Effect.
(b) The Borrower has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of this Amendment in accordance with the terms hereof. This Amendment has been duly executed and delivered by a duly authorized officer of the Borrower. The Amendment Borrower and constitutes the legal, valid and binding obligations obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the as such enforceability thereof may be limited by applicable any Debtor Relief Laws affecting from time to time in effect which affect the enforcement of creditors’ rights generally in general and by the availability of equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingremedies.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, each of the representations and warranties contained in each Article VII of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they Agreement shall be true and correct in all material respects on respects, except to the extent any such representation and as of such earlier date (provided that representations and warranties that are warranty is qualified by materiality or reference to Material Adverse Effect Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on the First Amendment Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date as of such financial statementsearlier date).
(ed) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithAmendment.
Appears in 1 contract
Representations and Warranties of the Borrower. The As an inducement to the Bank to execute this Agreement and to issue the Letter of Credit, the Borrower hereby represents and warrants to the Bank that: (a) The Borrower is a corporation duly organized, legally existing and in good standing under the laws of the State of Connecticut and has the legal power and authority to enter into and perform this Agreement and each of the Related Documents in which it is named as follows:a party, to grant the security interests and liens described in the Security Documents, to fulfill its obligations set forth herein and therein and to carry out the transactions contemplated hereby and thereby. The Borrower has all requisite corporate power to own and operate its properties and to carry on its business as now conducted and as proposed to be conducted and is duly qualified and in good standing in each jurisdiction where the failure so to be qualified could have a material adverse effect on the Borrower and/or its operations. At the date of this Agreement, the Borrower has only Subsidiaries listed on Exhibit D. The Borrower is not a member of any partnership or joint venture, other than Downtown Cogeneration Associates Limited Partnership.
(ab) The execution, delivery and performance by the Borrower of this Agreement, the Amendment has Security Documents and the other documents required to be executed by the Borrower pursuant hereto have been duly authorized by all necessary corporate action, will not require any consent of any third party not obtained prior to the date hereof, and will not conflict with, violate the provisions of, or other organizational action and does not (a) contravene cause a default or constitute an event which, with the terms passage of time or the giving of notice or both, could constitute a default on the part of the Borrower’s Organization Documents; (b) conflict with Borrower under any mortgage, indenture, judgment, decree, rule, regulation, law or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower material contract or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law agreement applicable to the Borrower and or under any provision of the AmendmentCharter or by-laws of the Borrower, except, or result in the case imposition of clause (b) any lien or (d) onlyencumbrance on any property or assets of the Borrower, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered except for the liens created by the BorrowerSecurity Agreement, the Mortgage and/or the related collateral assignments. The Amendment constitutes legalThis Agreement, the Security Documents and any other documents delivered to the Bank by the Borrower pursuant hereto are the valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its their respective terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
. (c) No approvalThere are no actions, consentsuits, exemptionproceedings or investigations pending or, authorizationto the knowledge of the Borrower, threatened, anticipated or other action bycontemplated (nor, to the knowledge of the Borrower, is there any basis therefor) against or notice toaffecting the Borrower before any court or governmental department, commission, board, bureau, agency or filing withinstrumentality, domestic or foreign, which could prevent or hinder the consummation of the transactions contemplated hereby or call into question the validity of this Agreement, any Governmental Authority of the Related Documents or any other Person is necessary instrument provided for or required contemplated by this Agreement or any action taken or to be taken in connection with the execution, delivery transactions contemplated hereby or performance by, thereby or enforcement against, which in any single case or in the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not aggregate could reasonably be expected to have a Material Adverse Effect).
result in any material adverse change in the business, prospects, condition, affairs or operations of the Borrower or any material impairment of the right or ability of the Borrower to carry on its operations as now conducted or as proposed to be conducted. Without conceding that any of same are material, the Borrower represents that the only judicial or administrative proceedings to which it is party are those set forth on Exhibit E hereto. (d) After giving effect The Borrower is not in violation of any term of its Charter or by- laws as now in effect. The Borrower is not in violation of any material term of any mortgage, indenture, judgment, decree or order, or any other material instrument, contract or agreement applicable to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsit.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby declares, represents and warrants as followsand shall be deemed to subsist from the date of this facility letter/Agreement until Credit Facilities and Said Dues are repaid in full:
(a) The execution, delivery and performance by Borrower is duly organised under the Borrower provisions of the Amendment (Indian) Companies Act, 1956, and existing under the laws of India, and has been duly authorized by all necessary corporate or other organizational action the power and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation authority to which the Borrower carry on its business as it is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award now being carried on and to which the Borrower or create security over its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower property and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.assets;;
(b) The Amendment has All corporate and other action under law and practice, as may be applicable on the part of the Borrower, its directors or shareholders, as may be applicable and as may be necessary for the due authorisation, execution and delivery of this Agreement and the security documents, and performance of the obligations hereunder, and the documents to be executed in pursuance hereof, has/have been duly taken and adopted and is/are in full force and effect;
(c) ▇▇▇▇▇▇▇▇ is aware that the Lender is granting the Credit Facilities on the basis of and on the faith of the representations made by the Borrower and believing the same to be true;
(d) The Borrower has obtained all permissions, approvals, consents or sanctions, if any required, of the government or any government or statutory body, agency or authority to enable it to lawfully carry on its business and availing of the Credit Facilities, and will at all times till the Said Dues are fully repaid, keep all such permissions, approvals, consents or sanctions, valid and subsisting;
(e) The officers of the Borrower executing this Agreement and the documents executed in the pursuance hereof, are duly and properly in office and fully authorized to execute the same and the present Agreement shall not be affected by reason of any absence of or deficiency or excess or irregularity in the exercise of any powers of the Borrower and its officers;
(f) The Agreement and the documents to be executed in pursuance hereof when executed and delivered by the Borrower. The Amendment constitutes legaldelivered, will constitute valid and binding obligations of the Borrower, enforceable ;
(g) It has not taken any corporate action nor have any steps been taken or legal proceeding been taken or legal proceedings been initiated or threatened against the Borrower for its winding-up, dissolution, administration, reorganization or for appointment of receiver, administrator of Borrower for all or any of its assets or undertakings;
(h) As of the date of this Agreement, there is no litigation, proceeding or dispute pending including but not limited to proceeding under Income Tax Act or threatened against the Borrower, the adverse determination of which might substantially affect the Borrower’s ability to repay the Said Dues or have a materially adverse effect on the financial condition of the Borrower;
(i) That all the security created in accordance with its termsfavor of the Lender are the absolute property of and at the sole disposal of the Borrower and free from any prior charge or encumbrance (except in favour of the Lender, except to if any), and undertakes that all future property shall likewise be the extent unencumbered, marketable and disposal property of the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingBorrower.
(cj) No approvalThe execution and delivery of this Agreement and the performance of its obligations hereunder does not (i) contravene any applicable law, consentstatute or regulation or any judgment or decree to which the Borrower is subject, exemption(ii) conflict or result in any breach of any of the terms of or constitute default of any covenant, authorizationconditions and stipulations under any existing agreement to which the Borrower is a party or (iii) conflict or contravene any provision of the Memorandum and Articles of Association or the Incorporation Documents of the Borrower;
(k) There has been no material adverse change in the financial condition of the Borrower, nor has any event which is prejudicial to the interest of the Lender taken place since the date of the latest audited financials of the Borrower which is likely to materially and/or adversely affect the ability of the Borrower to perform all or other action by, any of its obligations under this Agreement;
(l) The Borrower will not seek to claim or notice to, or filing withrecover from the Lender on any grounds whatsoever and/or in any circumstances whatsoever, any Governmental Authority purported damages or compensation, direct, indirect or consequential, for any other Person is necessary acts or required actions whatsoever of the Lender hereunder and/or in connection with respect of the executionSaid Dues , delivery or performance by, or enforcement against, and the Borrower hereby expressly waives any right to seek or make any such claim or recovery on any grounds whatsoever;
(m) The Borrower will use the Credit Facilities solely for the purpose as specified under this Agreement and in terms of this Amendment (other than (a) as have already been obtained the sanction terms and are in full force conditions and effect, (b) filings to perfect security interests granted pursuant shall confirm the same to the Amendment Lender, as may be required by the Lender;
(n) The Borrower undertakes and declares that the Credit Facility availed are within the borrowing powers as mentioned in Section 180(1) (c) approvalsof the Companies Act, consents2013;
(o) ▇▇▇▇▇▇▇▇ declares that the Security Provider has complied with the requirements mentioned in Section 180(1)(a) of the Companies Act, exemptions2013
(p) Create or permit to subsist any encumbrance, authorizationsmortgage or charge over all or any of the present or future properties, assets or revenues of the Borrower other actionsthan the already existing charges in favour of other financial institutions and Lenders which shall have been disclosed in writing to the Lender, notices or filings without the failure prior written consent of the Lender;
(q) Borrower undertakes that Lender does not have obligation to procure which would not reasonably be expected meet further requirement of the borrower on account of growth in business etc.;
(r) Borrower is aware and undertakes that the Lender may obtain the information with respect to have a Material Adverse Effect)Borrower’s Credit Facilities including derivatives and unhedging of foreign exchange exposure from Lender from time to time.
(ds) After giving effect to this AmendmentThere are no charges, the representations and warranties contained in each or liens of whatsoever nature against any of the Credit Documents are true Borrower’s Hypothecated Assets and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsFixed Assets/Property.
(et) No Default or Event of Default The Borrower shall exist immediately prior maintain such margins against Fixed Assets and Hypothecated Assets including stock and receivables as may be prescribed by the Lender, from time to time.
(u) The Borrower shall execute all documents and after giving do all acts, deeds and things, at its cost and expense, in such manner as the Lender may require to give full effect to (i) this Amendment and (ii) any Credit Extension made in connection herewiththese presents including creation of security herein envisaged.
Appears in 1 contract
Sources: Loan Agreement
Representations and Warranties of the Borrower. The Borrower EACH SUB-BORROWER, THE PARENT AND EACH INTERMEDIATE LESSEE To induce each of the Lenders and the Representatives to enter into the Transaction Documents, the Borrower, each Sub-Borrower, each Intermediate Lessee and the Parent represents and warrants as follows:to the Lenders and the Representatives separately and severally that:-
(a) The it is duly organised and validly existing under the laws of Bermuda (in the case of the Borrower), the State of California (in the case of the Parent) and the jurisdiction referred to in paragraph 2.1(d) of the relevant Accession Deed (in the case of each Sub-Borrower and each Intermediate Lessee), or in each case in the jurisdiction in which it may subsequently be incorporated, and has full power, authority and legal right to own its property and carry on its business as presently conducted;
(b) it has the power and capacity to execute and deliver, and to perform its obligations under the Transaction Documents to which it is or will be a party and all necessary action has been taken to authorise the execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; same;
(c) result in it has taken all necessary legal action to authorise the creation person or persons who execute and deliver the Transaction Documents to which it is or will be a party to execute and deliver the same and thereby bind it to all the terms and conditions hereof and thereof and to act for and on behalf of any Lien (other than Permitted Liens); or it as contemplated hereby and thereby;
(d) violate any Law applicable the Transaction Documents to the Borrower and the Amendment, except, in the case of clause (b) which it is or (d) only, as would not reasonably will be expected to have a Material Adverse Effect.
(b) The Amendment has been duly party constitute or will when executed and delivered by the Borrower. The Amendment constitutes constitute its legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except their terms subject only to the extent qualifications set out in the enforceability thereof legal opinions to be provided to the Lenders in accordance with the provisions of Clause 2.9 (Conditions Precedent) (in respect of the Aircraft) and Schedule 6 (in respect of the Aircraft Operative Documents);
(e) the execution and delivery by it of, the performance of its obligations under, and compliance with the provisions of, the Transaction Documents to which it is or will be a party will not (i) contravene any existing applicable law to which it is subject, (ii) conflict with, or result in any breach of any of the terms of, or constitute a default under, any document, instrument or agreement to which it is a party or is subject or by which it or any of its assets may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles bound, (iii) contravene or conflict with any provision of law its constitutional documents, or (regardless iv) result in the creation or imposition of, or oblige it to create, any Lien on or over any of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.its assets other than those created pursuant to the Transaction Documents;
(cf) No approval, every consent, exemptionregistration, authorization, licence and qualification required by it to enable it to carry on its business has been duly obtained or other action by, or notice to, or filing with, any Governmental Authority or any other Person made and is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, effect and there has been no default in the observance or performance of any of the conditions or restrictions (bif any) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizationsimposed on, or other actionsin connection with, notices or filings the failure to procure any such consent, registration, licence and/or qualification in each case which would not reasonably be expected to could have a Material Adverse Effect).material adverse effect on its ability to perform its obligations under any of the Transaction Documents to which it is or will be a party;
(dg) After giving effect to this Amendment, except as provided in the representations and warranties contained parenthetical proviso in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.Clause 7.1
Appears in 1 contract
Sources: Aircraft Facility Agreement (International Lease Finance Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as followsto the Lender that:
(a) the Borrower (i) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has all requisite power and authority to own its property and assets and to carry on its business as now conducted and as proposed to be conducted, (iii) is qualified to do business in every jurisdiction where such qualification is necessary (except where the failure to be so qualified could not individually or in the aggregate have a Material Adverse Effect on the Collateral or the business or condition (financial or otherwise) of the Borrower or, so long as a Material Portion is not affected, impair the enforceability of any Contracts or other Collateral pledged to the Lender), (iv) has the power and authority to execute, deliver and perform each Credit Document to which it is or will be a party, and (v) has taken all action necessary to authorize the execution, delivery and performance of the Credit Documents to which it is or will be a party;
(b) the Borrower is not, nor will the execution, delivery and the performance of and compliance with the terms of the Credit Documents cause Borrower to be, in violation of any Laws or its limited liability company operating agreement or certificate of formation (as each may be amended). The execution, delivery and the performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene compliance with the terms of the Borrower’s Organization Documents; (b) Credit Documents are not inconsistent with, and will not conflict with or result in any breach of, or contravention of (i) any Contractual Obligation to which the Borrower is party constitute a default under, or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation or imposition of any Lien Encumbrance (other than Permitted Liens); or (d) violate any Law applicable except in favor of the Lender, pursuant to the Credit Documents) upon any of the property, assets or revenues of Borrower and pursuant to the Amendmentterms of, exceptany indenture, in the case mortgage, lease, deed of clause (b) trust, agreement, contract, instrument or (d) onlyLaw to which Borrower is a party or by which Borrower or any of Borrower's property, as would not reasonably be expected assets or revenue is bound or to have a Material Adverse Effect.which it is subject;
(bc) The Amendment this Agreement has been duly executed and delivered by the Borrower. The Amendment constitutes Borrower and is, and each other Credit Document when executed and delivered by Borrower will be, a legal, valid and binding obligations obligation of the Borrower, enforceable against the Borrower it in accordance with its terms, terms (except to the extent the enforceability as enforcement thereof may be limited by applicable Debtor Relief Laws bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors’ ' rights generally and by equitable principles relating to or affecting enforcement of law (regardless creditors' rights generally or relief of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.debtors generally);
(cd) No approvalno order, consent, approval, license, permit, waiver, exemption, authorizationauthorization of or validation of, or other action filing, recording or registration with (except as heretofore have been obtained or made), or exemption by, or notice toany Person is required to authorize, or filing is required in connection with, the execution, delivery, performance, legality, validity, binding effect, or enforceability of any of the Credit Documents;
(e) there are no proceedings or investigations pending, or, to the Borrower's knowledge, threatened before any Governmental Authority having jurisdiction over the Borrower or its property: (A) asserting the invalidity of this Agreement or any other Person Credit Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Credit Agreement, or (C) seeking any determination or ruling that might cause a Material Adverse Change; in addition, there is no litigation involving Borrower involving amounts in excess of $25,000 in the aggregate, nor are there any outstanding or unpaid judgments against Borrower;
(f) the Borrower is not in violation of any term of its Organizational Documents, any material Requirement of Law, any Material Contract to which it is party or any Material Permit which relates to it;
(g) the Borrower has good and marketable title to all of its property. Except for Encumbrances permitted by Lender to be listed on Schedule M hereto and the Encumbrances in favor of Lender (collectively, the "Permitted Encumbrances"), there is no Encumbrance on any of Borrower's property or income. None of the Permitted Encumbrances are Encumbrances against any of the Contracts or any Related Tranche Collateral pledged to the Lender;
(h) each of the Collection Account, the Collection Sweep Investment Account and any amounts deposited therein are not subject to, and are free and clear of, any Encumbrances, except for Permitted Encumbrances in favor of the Lender only;
(i) to the best of Borrower's knowledge, there are no facts or conditions relating to the Credit Documents, any of the Collateral or the financial condition and business of Borrower which would, individually or collectively, cause a Material Adverse Change in respect of the Borrower, the Seller, the Servicer or the Custodian and which have not been revealed in writing to Lender. All writings heretofore or hereafter exhibited or delivered to Lender by or on behalf of Borrower are and will be genuine and in all respects what they purport and appear to be. No information furnished to Lender by or on behalf of Borrower contains any material misstatement of fact or omits to state any fact necessary to make the statements contained herein or required therein, in connection with light of the circumstances in which they were made, not misleading which would result in a Material Adverse Change in respect of the Borrower, the Seller, the Servicer or the Custodian;
(j) the Borrower is not, nor will the execution, delivery and performance of and compliance with the terms of the Credit Documents cause Borrower to be, in default (nor has any potential default occurred) under any material agreement, document or performance byinstrument other than such defaults or potential defaults which could not, individually or collectively, cause a Material Adverse Change in respect of the Borrower, the Seller, the Servicer or the Custodian;
(k) the jurisdiction of organization of the Borrower is situated in the State of Delaware and the Borrower is a "registered organization" within the meaning of Article 9 of the Delaware UCC; and the principal place of business and chief executive office of the Borrower are situated in the State of California;
(l) neither Borrower nor any transaction contemplated hereunder is subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, the Investment Company Act of 1940, the Interstate Commerce Act (as any of the preceding acts have been amended), any regulations promulgated by the Office of Foreign Assets Control as codified in Chapter V of 31 C.F.R., or enforcement against, the Borrower of this Amendment any other Law (other than Regulation T, U or X of the Board of Governors of the Federal Reserve System) which regulates the incurrence of Debt;
(am) the Borrower is neither an "investment company" nor a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as have already been obtained amended from time to time, or any successor statute;
(n) the Borrower is Solvent before and are in full force and effect, (b) filings to perfect security interests granted pursuant after giving effect to the Amendment and transactions contemplated by this Agreement;
(co) approvalsin the last five years, consentsBorrower has not transacted business under any other company or trade name, exemptionsbeen a party to any merger, authorizationscombination, or other actionsconsolidation or acquired all or substantially all of the assets of any Person;
(p) no Person who may be deemed to have "control" of Borrower is an "executive officer," "director," or "principal shareholder" of Lender or any correspondent of Lender, notices or filings as such quoted terms are defined in Section 215.2 of Regulation 0 of the Board of Governors of the Federal Reserve System, as amended;
(q) the Borrower possesses adequate authority and licenses including, without limitation, licenses and registrations necessary to acquire Eligible Contracts and to continue to conduct its business as presently conducted (except where the failure to procure which have such authority and licenses would not reasonably be expected to individually or in the aggregate have a Material Adverse EffectEffect on the Collateral or the business or condition (financial or otherwise) of the Borrower or, so long as a Material Portion is not affected, impair the enforceability of any Contracts or other Collateral pledged to the Lender).;
(dr) After giving effect all tax returns and reports of Borrower required to be filed have been filed, and all Taxes imposed upon Borrower which are due and payable have been paid, other than Taxes being contested in good faith for which the criteria for Permitted Encumbrances have been satisfied; provided, however, that the Borrower shall not be in violation of this Amendmentcovenant if Taxes have not been paid, and/or tax returns and reports have not been filed, with respect to Taxes not exceeding an aggregate amount of $250,000;
(s) the Borrower does not currently sponsor or contribute to, nor has any contract or other obligation to contribute to (nor has Borrower in the preceding sixty (60) calendar months sponsored or contributed to, or contracted to or become otherwise obligated to contribute to) any Plan or any Multiemployer Plan;
(t) the proceeds of the Advances will be used only for the purposes set forth in Section 2.2 hereof and shall not be used (a) to purchase or carry any "Margin Stock" (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), or (b) for any purpose in violation of Regulations T, U or X of said Board of Governors;
(u) the Borrower has no Subsidiaries;
(v) the Borrower is not a partner or joint venturer in any partnership or joint venture;
(w) the ownership of Borrower as set forth on Schedule H hereto is true, correct and complete. The entire limited liability company membership interest of Borrower has been duly and validly issued to the Seller in accordance with Borrower's organizational documents and all applicable requirements of law and is fully paid and non-assessable. There are no options, warrants, rights, calls, commitments, plans, contracts or other agreements granted or issued regarding the limited liability company membership interests of Borrower and none are authorized; PROVIDED that, for the avoidance of doubt, the representations Special Members may become Members of the Borrower, but do not and warranties contained will not hold any economic interest in the Borrower;
(x) each of the Credit Documents Dealer Agreements, E-Fund Agreements and Note and Security Agreements, entered into (whether by assignment or otherwise) by the Seller with respect to any Contract is in substantially the form attached hereto as Schedule N, Schedule O and Schedule P, respectively, and any changes therefrom related to any particular Contract are true not adverse to the Lender;
(y) no Event of Default or Potential Event of Default has occurred and correct is continuing;
(z) the Certificates or copies of policies evidencing Borrower's insurance coverage, delivered to Lender and described on Schedule G hereto, are complete and accurate;
(aa) Borrower possesses and owns all necessary trademarks, trade name, copyrights, patents, patent rights, franchises and licenses which are material to the conduct of its businesses as now operated;
(bb) each Drawdown Notice, Schedule of Contracts, Schedule of Removed Contracts, and Monthly Servicer Report which has been furnished to the Lender pursuant to this Agreement was accurate and complete in all material respects on the date of delivery thereof to the Lender;
(cc) each Receivable which forms part of the Collateral pledged to the Lender for any Tranche is an Eligible Contract; and
(dd) affirmations of the foregoing Representations and Warranties subsequent to the Closing Date shall be based on information delivered to Lender by Borrower as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, Closing Date (or subsequent information delivered by Borrower in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectscompliance herewith), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Sources: Credit Agreement (E Loan Inc)
Representations and Warranties of the Borrower. The In order to induce the Banks and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto each Bank and Administrative Agent that the following statements are true, correct and complete:
(ai) The execution, delivery and performance by the Borrower of this Amendment No. 1 and the Credit Agreement as amended by this Amendment has No. 1 (the “Amended Credit Agreement”; and collectively, the “Amendment Documents”) are within its partnership authority, have been duly authorized by all necessary corporate requisite action, and are not in conflict with the terms of any organizational instruments of such entity, or any instrument or agreement to which Borrower or General Partner is a party or by which Borrower, General Partner or any of their respective assets may be bound or affected;
(ii) The officers of General Partner executing this Amendment No. 1 and any other organizational action Amendment Documents required to be delivered by it on behalf of Borrower hereunder have been duly elected or appointed and does were fully authorized to execute the same at the time each such Amendment Document was executed;
(iii) The execution and delivery of, and the performance of the obligations required to be performed by Borrower under, this Amendment No. 1 and any other Amendment Documents do not and will not (a) contravene the terms of the Borrower’s Organization Documents; violate any provision of, or, except for those which have been made or obtained, require any filing (other than SEC disclosure filings), registration, consent or approval under, any Law (including, without limitation, Regulation U), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it, except for such violations, or filings, registrations, consents and approvals which if not done or obtained would not likely cause a Material Adverse Change to occur, (b) conflict with or result in a breach of or constitute a default under or require any breach consent under any indenture or contravention of (i) loan or credit agreement or any Contractual Obligation other agreement, lease or instrument to which the Borrower is it may be a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to by which the Borrower it or its Property is subject; properties may be bound or affected except for consents which have been obtained or which if not obtained are not likely to cause a Material Adverse Change to occur, (c) result in in, or require, the creation or imposition of any Lien (other than Permitted Liens); Lien, upon or with respect to any of its properties now owned or hereafter acquired which would likely cause a Material Adverse Change to occur, or (d) violate cause it to be in default under any Law applicable to the Borrower and the Amendmentsuch Law, exceptorder, in the case of clause (b) writ, judgment, injunction, decree, determination or (d) onlyaward or any such indenture, as agreement, lease or instrument which would not reasonably be expected to have likely cause a Material Adverse Effect.Change to occur; to the best of its knowledge, Borrower is in compliance with all Laws applicable to it and its properties where the failure to be in compliance would cause a Material Adverse Change to occur;
(biv) The Each of this Amendment has been duly executed No. 1 and delivered by the Borrower. The other Amendment constitutes Documents is a legal, valid and binding obligations obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof that such enforcement may be limited by applicable Debtor Relief Laws bankruptcy, insolvency and other similar laws affecting creditors’ rights generally and by equitable generally, as well as general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.equity;
(cv) No approval, consent, exemption, authorization, or This Amendment No. 1 and the other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with Amendment Documents have been duly executed and delivered by the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).Borrower;
(dvi) After giving effect to this Amendment, the The representations and warranties of the Borrower contained in each Article V of the Credit Documents Agreement are and will be true and correct in all material respects on and as of the date hereof Amendment Effective Date to the same extent as though made on and as of such date dates (except to the extent that in those cases where such representations and warranties specifically refer representation or warranty expressly relates to an earlier date, in which case they shall be such representations and warranties were true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects)date, and except for changes in factual circumstances permitted hereunder), provided that the representations and warranties contained in Section 6.05 5.20 of the Credit Agreement shall is qualified insofar as the Borrower will be deemed required to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.file this Amendment No. 1 in connection with its compliance with its periodic reporting obligations; and
(evii) No Default or Event of Default shall exist immediately prior to has occurred and is continuing, both before and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithNo. 1.
Appears in 1 contract
Representations and Warranties of the Borrower. The In order to induce the Banks and the Administrative Agent to enter into this Amendment No. 2, the Borrower represents and warrants as followsto each Bank and the Administrative Agent that the following statements are true, correct and complete:
(ai) The executionthe Borrower is duly organized, validly existing and in good standing as a limited partnership under the laws of the State of Delaware and has all powers and all material governmental licenses, authorizations, consents and approvals required to own its property and assets and carry on its business as now conducted or as it presently proposes to conduct and has been duly qualified and is in good standing in every jurisdiction in which the failure to be so qualified and/or in good standing is likely to have a Material Adverse Effect;
(ii) the Borrower has the organizational power and authority to execute, deliver and carry out the terms and provisions of each of this Amendment No. 2, the Credit Agreement as amended by this Amendment No. 2 and any Notes issued pursuant to Section 3D below (the “New Notes”) and has taken all necessary action to authorize the execution and delivery on behalf of the Borrower and the performance by the Borrower of this Amendment No. 2, the Credit Agreement as amended by this Amendment No. 2 and the New Notes. The Borrower has been duly authorized executed and delivered this Amendment No. 2 and the New Notes, and each of this Amendment No. 2, the Credit Agreement as amended by all necessary corporate this Amendment No. 2 and the New Notes constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, except as enforceability may be limited by applicable insolvency, bankruptcy or other organizational action laws affecting creditors rights generally, or general principles of equity, whether such enforceability is considered in a proceeding in equity or at law;
(iii) neither the execution, delivery or performance by or on behalf of the Borrower of this Amendment No. 2 and does not the Credit Agreement as amended by this Amendment No. 2, nor compliance by the Borrower with the terms and provisions hereof and thereof nor the consummation of the transactions contemplated by this Amendment No. 2 and the Credit Agreement as amended by this Amendment No. 2, (a) will contravene any applicable provision of any law, statute, rule, regulation, order, writ, injunction or decree of any court or governmental instrumentality applicable to Borrower except to the terms of the Borrower’s Organization Documents; extent such contravention is not likely to have a Material Adverse Effect, or (b) will conflict with or result in any breach of, any of the terms, covenants, conditions or contravention provisions of, or constitute a default under, or result in the creation or imposition of (ior the obligation to create or impose) any Contractual Obligation Lien upon any of the property or assets of the Borrower pursuant to the terms of any material indenture, mortgage, deed of trust, or other agreement or other instrument to which the Borrower is party (or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to partnership of which the Borrower is a partner) is a party or by which it or any of its Property property or assets is subject; (c) result in the creation of any Lien (other than Permitted Liens); bound or (d) violate any Law applicable to which it is subject except to the Borrower and the Amendment, except, in the case of clause (b) extent such conflict or (d) only, as would breach is not reasonably be expected likely to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approvalwill conflict with or result in a breach of any organizational document of any Subsidiary, consentthe certificate of limited partnership, exemption, authorizationpartnership agreement or other organizational document of ▇▇▇▇▇▇▇▇, or other action the General Partner’s articles of incorporation or by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).-laws;
(div) After giving effect to this Amendment, the representations and warranties contained made or deemed made by the Borrower in each of the Credit Documents any Loan Document are true and correct in all material respects (except to the extent any such representation or warranty is qualified by “materiality”, “Material Adverse Effect” or a similar qualifier, in which case it is true and correct in all respects) on and as of the date hereof as though made on and as of such date Amendment No. 2 Effective Date except to the extent that such representations and warranties specifically refer expressly relate solely to an earlier date, date (in which case they such representations and warranties shall be have been true and correct in all material respects on and as of (except to the extent any such earlier date (provided that representations and warranties that are representation or warranty is qualified by materiality or reference to “materiality”, “Material Adverse Effect Effect” or a similar qualifier, in which case it shall be true and correct in all respects) on and as of such earlier date), ;
(v) no event has occurred and except that is continuing or will result from the representations and warranties contained in Section 6.05 consummation of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No transactions contemplated by this Amendment No. 2 that would constitute a Default or Event of Default shall exist immediately Default; and
(vi) there have been no changes to the organizational documents of the Borrower and the General Partner since October 3, 2022, other than amendments or amendments and restatements, as applicable, that have been delivered to the Administrative Agent prior to and after giving effect to (i) this the Amendment and (ii) any Credit Extension made in connection herewithNo. 2 Effective Date.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants as followsto the Administrative Agent and each Lender that:
(a) The execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties of the Borrower contained in each Section 5.01 of the Credit Documents Agreement are true and correct in all material respects on (except in the case of any representation and warranty qualified by materiality, which is true and correct in all respects) as of the date hereof as though made on and as of such date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects on (except in the case of any representation and as of such earlier date (provided that representations and warranties that are warranty qualified by materiality or reference to Material Adverse Effect shall be materiality, which is true and correct in all respects)) as of such earlier date.
(b) No Event of Default, Unmatured Event of Default, Facility Amortization Event, Servicer Termination Event or any event that with the giving of notice of the lapse of time, or both, would constitute a Servicer Termination Event has occurred and except that is continuing.
(c) The Borrower
(i) has all necessary power, authority and legal right to (A) execute and deliver this Amendment and (B) carry out the representations terms of this Amendment and warranties contained in Section 6.05 the Basic Documents as amended hereby and (ii) has duly authorized by all necessary limited liability action the execution, delivery and performance of this Amendment and the Basic Documents as amended hereby on the terms and conditions herein and therein provided.
(d) All approvals, authorizations, consents, orders, licenses or other actions of any Person or of any Governmental Authority required for the due execution and delivery of this Amendment by the Borrower and performance by the Borrower of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsas amended hereby have been obtained.
(e) No Default or Event The execution and delivery of Default shall exist immediately prior to this Amendment, the consummation of the transactions contemplated hereby and after giving effect to by the Basic Documents as amended hereby and the fulfillment of the terms hereof and thereof will not (i) this Amendment conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without the giving of notice or lapse of time or both) a default under, the Formation Documents or a default in any material respect under any Contractual Obligation of the Borrower, (ii) result in the creation or imposition of any Credit Extension made Lien upon any of the Borrower’s properties, or (iii) violate any Applicable Law.
(f) This Amendment constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in connection herewithaccordance with its terms, except as such enforceability may be limited by applicable Insolvency Laws and except as such enforceability may be limited by general principles of equity (whether considered in suit at law or in equity).
Appears in 1 contract
Representations and Warranties of the Borrower. The 5.1 Borrower represents (including but not limited to the Additional Borrower) hereby reaffirms all warranties, covenants, agreements, representations, and warrants undertakings set forth in the Original Loan Documents except as follows:
(a) The execution, delivery and performance may be modified by the Borrower express provisions of this Agreement.
5.2 Each entity Obligor was duly formed and is in good standing under the laws of the Amendment state of its formation, and utilizes no names other than as set forth in the Loan Documents. Each Obligor has all requisite power and authority (i) to execute and deliver this Agreement and all other Loan Documents, and to consummate the transactions and perform its obligations thereunder; (ii) to own and operate its properties and assets and to carry on the business now conducted or as now contemplated; and (iii) is qualified or authorized to do business and is in good standing in all jurisdictions wherein the character of the property owned or the nature of the business conducted by Obligor makes such qualification or authorization necessary.
5.3 The execution and delivery of, and the consummation of the transactions contemplated under, this Agreement and all of the other Loan Documents, have been duly authorized by all and approved and no other proceedings on the part of Borrower or the Validity Guarantors are necessary corporate or other organizational action and does not (a) contravene required under the terms laws of the Borrower’s Organization State of New York and all other jurisdictions which may have an effect on the validity and enforceability of the Loan Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) 5.4 The Amendment has been duly executed and Loan Documents delivered or to be delivered by the Borrower. The Amendment constitutes Borrower are legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its their respective terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with 5.5 As of the execution, delivery or performance by, or enforcement againstdate hereof, the Borrower of this Amendment (other than Obligors represent and warrant as follows: (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Obligors set forth in the Loan Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and correct; (b) of the Credit Agreement Obligors are in compliance with all the terms and to provisions set forth in the date of such financial statements.
Loan Documents; (ec) No neither a Default or nor an Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment under the Loan Documents exists; and (iid) the Bank is in full compliance with its obligations under the Loan Documents and there exist no claims, defenses, offsets, counterclaims, or causes of action of any Credit Extension made kind in connection herewithfavor of the Obligors and against the Bank, its agents, servants, representatives, and employees, and that any such claims in any event are hereby irrevocably waived.
Appears in 1 contract
Sources: Loan Modification Agreement (Coffee Holding Co Inc)
Representations and Warranties of the Borrower. The Borrower represents makes the following representations and warrants warranties to the Lender as follows:the date hereof, the Closing Date and the date of any subsequent disbursement of funds.
(a) Borrower is duly organized, validly existing and in good standing under the laws of its state of formation and is duly qualified as a foreign corporation in each jurisdiction in which the character of its properties or the nature of its business requires such qualification. Borrower has all requisite power to transact the business it transacts and proposes to transact, to execute and deliver this Agreement, and all other documents and agreements contemplated hereby and thereby, and to perform the provisions hereof and thereof and to consummate the transactions contemplated hereby and thereby.
(b) The execution, delivery and performance of this Agreement and all other documents and agreements contemplated hereby or thereby to be executed, delivered and performed by the Borrower Borrower, and the consummation of the Amendment has transactions contemplated hereby or thereby, have been duly authorized and approved by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with . This Agreement and all other documents and agreements contemplated hereby or result in any breach or contravention of (i) any Contractual Obligation thereby to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legalBorrower have been duly authorized, executed and delivered by, and are the valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its their terms, except to the extent the enforceability thereof as may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and bankruptcy, reorganization, insolvency, moratorium or other similar laws or by legal or equitable principles of law (regardless of whether enforcement is sought in equity relating to or at law) and implied covenants of good faith and fair dealinglimiting creditors' rights generally.
(c) No approval, consent, exemption, authorizationapproval or authorization of, or other action byregistration, filing or notice to, or filing declaration with, any Governmental Authority person or any other Person entity is necessary or required in connection with for the execution, delivery or performance by, or enforcement against, by the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)Agreement.
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Representations and Warranties of the Borrower. The In order to induce the Banks and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto each Bank and Administrative Agent that the following statements are true, correct and complete:
(ai) The executionexecution and delivery of this Amendment No. 1, delivery the Loan Agreement as amended by this Amendment No. 1 (the “Amended Loan Agreement”, and together with this Amendment No. 1, collectively, the “Amendment Documents”) and the performance of the obligations required to be performed by the Borrower of hereunder and thereunder are within the Amendment has Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not and will not (a) contravene require the terms consent or approval of the Borrower’s Organization Documents; its shareholders or such consent or approval has been obtained, (b) conflict with contravene either its certificate of incorporation or result in by-laws, (c) to the best of Borrower’s knowledge, violate any breach provision of, or contravention of require any filing, registration, consent or approval under, any Law (i) any Contractual Obligation to which the Borrower is party or (ii) any including, without limitation, Regulation U), order, writ, judgment, injunction, writ decree, determination or decree of any Governmental Authority or any arbitral award presently in effect having applicability to which the Borrower or its Property is subject; it, (cd) result in a breach of or constitute a default under or require any consent under any indenture or loan or credit agreement or any other agreement, lease or instrument to which it may be a party or by which it or its properties may be bound or affected except for consents which have been obtained, (e) result in, or require, the creation or imposition of any Lien (other than Permitted Liens); Lien, upon or with respect to any of its properties now owned or hereafter acquired or (df) violate to the best of Borrower’s knowledge, cause it to be in default under any Law such Law, order, writ, judgment, injunction, decree, determination or award or any such indenture, agreement, lease or instrument; to the best of its knowledge, Borrower is in compliance with all Laws applicable to the Borrower it and the Amendment, except, its properties where failure to be in the case of clause (b) or (d) only, as would not compliance with such Laws could reasonably be expected to have result in a Material Adverse Effect.Change;
(bii) The this Amendment No. 1 has been duly executed and delivered by the Borrower. The , is in full force and effect as of the Amendment constitutes Effective Date and each Amendment Document is a legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof that such enforcement may be limited by applicable Debtor Relief bankruptcy, insolvency and other similar Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.generally;
(ciii) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower each of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties of the Borrower contained in each of the Credit Amended Loan Agreement, this Amendment No. 1, and the other Loan Documents are true and correct in all material respects on as of the date as of which they were made and are true and correct in all material respects at and as of the date hereof as though made on and as of such date this Amendment No. 1, except to the extent that such for representations and warranties specifically refer which are expressly stated to an relate to a specific earlier date, in which case they such representations and warranties were true and correct in all material respects as of such earlier date (or in the case of any representation or warranty that is qualified as to “materiality”, “Material Adverse Change” or similar language, shall be true and correct in all material respects on and as of the applicable date, after giving effect to such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsqualification), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.; and
(eiv) No no Default or Event of Default shall exist immediately prior to exists on the date hereof (before and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithNo. 1).
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower hereby represents and warrants for the benefit of the Authority as follows:
(aA) The Borrower is a duly organized and validly existing Governmental Agency, as described in the Act, with full power to own its properties, conduct its affairs, enter into this Assistance Agreement, and consummate the transactions contemplated hereby.
(B) The negotiation, execution, and delivery of this Assistance Agreement and performance by the Borrower consummation of the Amendment has transactions contemplated hereby have been duly authorized by all necessary corporate or other organizational requisite action and does not (a) contravene of the terms governing body of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(bC) The Amendment This Assistance Agreement has been duly executed and delivered by the Borrower. The Amendment constitutes legal, Borrower and is a valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its terms, except to the extent that the enforceability thereof hereof may be limited by applicable Debtor Relief Laws equitable principles and by bankruptcy, reorganization, moratorium, insolvency, or similar laws heretofore or hereafter enacted relating to or affecting the enforcement of creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingremedies generally.
(cD) No approvalTo the knowledge of the Borrower, consentthere is no controversy or litigation of any nature pending or threatened in any court or before any board, exemption, authorizationtribunal, or other action byadministrative body to challenge in any manner the authority of the Borrower or its governing body to make payments under this Assistance Agreement or to acquire, implement, or notice toConstruct the Project; or to challenge in any manner the authority of the Borrower or its governing body to take any of the actions that have been taken in the authorization or delivery of this Assistance Agreement or the acquisition, implementation, or filing with, Construction of the Project; or in any Governmental Authority way contesting or any other Person is necessary or required in connection with affecting the execution, delivery or performance byvalidity of this Assistance Agreement, or enforcement against, in any way questioning any proceedings taken with respect to the authorization or delivery by the Borrower of this Amendment Assistance Agreement, or the application of the proceeds thereof or the pledge or application of any monies or security provided therefor; or in any way questioning the due existence or powers of the Borrower, or otherwise wherein an unfavorable decision would have an adverse impact on the transactions authorized in connection with this Assistance Agreement.
(E) The authorization and delivery of this Assistance Agreement and the consummation of the transactions contemplated hereby will not constitute an event of default or violation or breach, or an event which, with the giving of notice or the passage of time or both, would constitute an event of default or violation or breach under any contract, agreement, instrument, indenture, lease, judicial or administrative order, decree, rule or regulation, or other than document or law affecting the Borrower or its governing body.
(aF) as have already been obtained In accordance with the Authorizing Action of the governing body, the Borrower has approved and are authorized the execution and delivery of this Assistance Agreement. The Authorizing Action was duly enacted or adopted at a duly called meeting or meetings held in accordance with the law of the governing body of the Borrower at which a quorum was present and acting throughout; is in full force and effect; and has not been superseded, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvalsaltered, consents, exemptions, authorizationsamended, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and repealed as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementshereof.
(eG) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made All actions taken by the Borrower in connection herewithwith this Assistance Agreement, the Loan, and the acquisition, implementation, or Construction of the Project have been in full compliance with the provisions of the Kentucky Open Meeting Law, Sections 61.805 to 61.850, inclusive, of the Kentucky Revised Statutes.
(H) The Borrower has obtained all licenses, permits, and other governmental approvals (including all required approvals of the Kentucky Public Service Commission) required to own, occupy, operate, and maintain the System, to acquire, implement, or Construct the Project, to charge and collect the Service Charges, and to enter into this Assistance Agreement. The Borrower is not in violation of and has not received any notice of an alleged violation of any zoning or land use laws applicable to the Construction of the Project and has full right, power, and authority to perform the acts required of the Borrower by this Assistance Agreement.
(I) Legal counsel to the Borrower has duly executed and delivered the opinion of legal counsel substantially in the form set forth as Exhibit D attached hereto.
(J) The Borrower is in full compliance with all federal and state labor and procurement laws in connection with the acquisition, implementation, or Construction of the Project to which any such laws may apply.
Appears in 1 contract
Sources: Assistance Agreement
Representations and Warranties of the Borrower. The In order to induce each Lender to enter into this Amendment, the Borrower represents and warrants as followsto each Lender that:
(a) The execution, delivery representations and performance by warranties of the Borrower contained in the Original Agreement are true and correct at and as of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms time of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its termseffectiveness hereof, except to the extent that the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure facts on which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the such representations and warranties contained in each are based have been changed by the extensions of credit under the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent Agreement or that such representations and warranties specifically refer to an earlier date, date in which case they shall be true and correct in all material respects on and as of such earlier date date.
(provided that representations b) The Borrower and warranties that the General Partner are qualified duly authorized to execute and deliver this Amendment and have duly taken all corporate action necessary to authorize the execution and delivery of this Amendment and to authorize the performance of the obligations of the Borrower and the General Partner hereunder.
(c) The execution and delivery by materiality the Borrower and the General Partner of this Amendment, the performance by the Borrower and the General Partner of their obligations hereunder and the consummation of the transactions contemplated hereby do not and will not conflict with any provision of law, statute, rule or reference regulation or of the Organizational Documents of the Borrower or the General Partner, or of any material agreement, judgment, license, order or permit applicable to Material Adverse Effect shall be true or binding upon the Borrower or the General Partner, or result in the creation of any lien, charge or encumbrance upon any assets or properties of the Borrower or the General Partner. Except for those which have been obtained, no consent, approval, authorization or order of any court or governmental authority or third party is required in connection with the execution and correct in all respects)delivery by the Borrower and the General Partner of this Amendment or to consummate the transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall will be deemed to refer a legal and binding obligation of the Borrower and the General Partner, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or similar laws of general application relating to the most recent financial statements furnished pursuant to Section 7.01(a) enforcement of creditors' rights and (b) by equitable principles of the Credit Agreement and to the date of such financial statementsgeneral application.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Sources: Credit Agreement (Ferrellgas Partners Finance Corp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes to be delivered by it (if any), and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action and does not (a) contravene on the terms part of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of , and do not contravene (i) any Contractual Obligation to which the Borrower is party Borrower’s charter or by laws or (ii) any order, injunction, writ or decree of any Governmental Authority law or any arbitral award to which material contractual restriction binding on the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the AmendmentBorrower, except, in the case of this clause (b) or (d) onlyii), as where such violations would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, authorization or approval or other action by, or and no notice to, to or filing with, any Governmental Authority governmental authority or any other Person regulatory body is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment Agreement or the Notes to be delivered by it (other than if any) except (ai) as those that have already been obtained and are in full force and effectobtained, filed or made or (bii) filings where the Borrower’s failure to perfect security interests granted pursuant to the Amendment and (c) receive, take or make such authorizations, approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this AmendmentThis Agreement has been, the representations and warranties contained in each of the Credit Documents are true Notes to be delivered by it (if any) when delivered hereunder will have been, duly executed and correct in all material respects on delivered by the Borrower. This Agreement is, and as each of the date hereof as though made on Notes (if any) when delivered hereunder will be, the legal, valid and as binding obligation of such date the Borrower enforceable against the Borrower in accordance with their respective terms except to the extent that such representations the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium and warranties specifically refer other laws affecting creditors’ rights generally and by equitable principles (regardless of whether enforcement in sought in equity or at law).
(i) The Consolidated balance sheet of the Borrower and its Subsidiaries as at January 31, 2018, and the related Consolidated statements of operations and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants, copies of which have been made available to an earlier dateeach Lender, in which case they shall be true and correct fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on and as such date, all in accordance with generally accepted accounting principles consistently applied.
(ii) Since January 31, 2018, there has been no Material Adverse Change.
(f) There is no pending or, to the Borrower’s knowledge, threatened in writing, action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, against the Borrower or any of such earlier date its Subsidiaries before any court, governmental agency or arbitrator that (provided that representations and warranties that are qualified by materiality or reference i) could reasonably be expected to have a Material Adverse Effect shall or (ii) could reasonably be true and correct expected to adversely affect the legality, validity or enforceability of the Loan Documents.
(g) The Borrower is not engaged in all respectsthe 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 except that no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the representations purpose of purchasing or carrying any margin stock. NYDOCS02/1172294 32
(h) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) No written information, exhibit or report furnished by or on behalf of the Borrower to the Agent or any Lender in connection with the negotiation of this Agreement (other than Projections (as defined below), budgets, estimates and warranties other forward-looking information or information of a general economic or industry nature), when taken together with the Borrower’s filings with the Securities and Exchange Commission, contained when furnished any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading. Any projections or pro forma financial information contained in Section 6.05 such information, exhibits or reports (the “Projections”) are based upon good faith estimates and assumptions believed by the Borrower to be reasonable at the time made, it being recognized by the Lenders that such projections and pro forma information are not to be viewed as facts and that actual results during the period or periods covered thereby may differ from the projected or pro forma results (it being understood that forecasts and projections by their nature involve approximations and uncertainties).
(j) The Borrower has implemented and maintains in effect policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and any agent of the Credit Agreement shall be deemed to refer Borrower or any Subsidiary that acts in any capacity in connection with, or benefits from, the credit facility established hereby with Anti-Corruption Laws and applicable Sanctions, and the Borrower and its Subsidiaries, and to the most recent financial statements furnished pursuant to Section 7.01(aknowledge of the Borrower, its officers, employees, directors and any agent of the Borrower or any Subsidiary that acts in any capacity in connection with, or benefits from, the credit facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) and the Borrower, any Subsidiary or any of their respective directors, officers or employees, or (b) to the knowledge of the Credit Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or other transaction contemplated by this Agreement and to the date of such financial statementswill violate Anti-Corruption Laws or applicable Sanctions.
(ek) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithThe Borrower is not an EEA Financial Institution.
Appears in 1 contract
Sources: Credit Agreement (Autodesk Inc)
Representations and Warranties of the Borrower. The In order to induce the Lenders and the Administrative Agent to enter into this Amendment No. 2, the Borrower represents and warrants as followsto each Lender and the Administrative Agent that the following statements are true, correct and complete:
(ai) The execution, delivery and performance by the Borrower of this Amendment No. 2 and the Loan Agreement as amended by this Amendment has No. 2 (the “Amended Loan Agreement”) are within its partnership powers and authority and have been duly authorized by all necessary corporate or other requisite organizational action action;
(ii) The execution and does not delivery of, and the performance of the obligations required to be performed by Borrower under, this Amendment No. 2 and the Amended Loan Agreement (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with do not require any consent or result in any breach approval of, registration or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any orderfiling with, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the executionPerson, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) except such as have already been obtained or made or will be made by the legally required time and are in full force and effect, (b) filings to perfect security interests granted pursuant to will not violate any applicable law or regulation or the Amendment and (c) approvalscharter, consents, exemptions, authorizations, by-laws or other actionsorganizational documents of the Borrower or any of its Subsidiaries or any order of any Governmental Authority, notices except for any violation of any applicable law or filings the failure to procure which would regulation that is not reasonably be expected likely to have result in a Material Adverse Effect).
, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, except for any violation or default that is not reasonably likely to result in a Material Adverse Effect, and (d) After giving effect will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries, except for any Refinancing Mortgages;
(iii) Each of this Amendment No. 2 and the Amended Loan Agreement constitutes a legal, valid and binding obligation of the Borrower, enforceable against Borrower in accordance with its terms, subject to this Amendmentapplicable 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;
(iv) This Amendment No. 2 has been duly executed and delivered by the Borrower;
(v) The representations and warranties of the Borrower contained in each Article III of the Credit Documents Loan Agreement are and will be true and correct in all material respects on and as of the date hereof Amendment Effective Date to the same extent as though made on and as of such date (except to the extent that in those cases where such representations and warranties specifically refer representation or warranty expressly relates to an earlier date, in which case they shall be such representations and warranties were true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsdate), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.; and
(evi) No Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithis continuing.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware. The General Partner is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s partnership or the General Partner’s general corporate powers, have been duly authorized by all necessary corporate action by or on behalf of the General Partner or the Borrower (including, without limitation, all necessary partner, managing member or other organizational action similar action), and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party General Partner’s organizational documents or (ii) any order, injunction, writ or decree of any Governmental Authority material law or any arbitral award material contractual restriction binding on or affecting the Borrower.
(c) No material authorization or approval or other action by, and no notice to which 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 Borrower or its Property is subject; (c) result in any general partner or managing member of the creation Borrower of any Lien (other than Permitted Liens); this Agreement or the Notes to be delivered by it.
(d) violate any Law applicable This Agreement has been, and each of the Notes to the Borrower and the Amendmentbe delivered by it when delivered hereunder will have been, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except to the extent the as enforceability thereof may be limited by applicable Debtor Relief Laws bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles of law (regardless of whether enforcement is sought by proceedings in equity or at law) and implied covenants of good faith and fair dealing).
(ce) No approvalThe Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, consent2005, exemptionand the related Consolidated statements of comprehensive income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, authorizationaccompanied by an opinion of KPMG LLP, independent public accountants, copies of which have been furnished to each Lender, fairly present the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles in the United States of America consistently applied.
(f) Since December 31, 2005, there has been no Material Adverse Change.
(g) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or other action byproceeding, or notice toincluding, or filing withwithout limitation, any Governmental Authority or any other Person is necessary or required in connection with Environmental Action, against the execution, delivery or performance by, or enforcement againstGeneral Partner, the Borrower or any of this Amendment its Subsidiaries (other than the Disclosed Litigation) before any court, governmental agency or arbitrator that (ai) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not is reasonably be expected likely to have a Material Adverse Effect)Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(dh) After giving effect to this Amendment, The Borrower is not engaged in the representations and warranties contained in each 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 Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsFederal Reserve System), and except that no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the representations and warranties contained in Section 6.05 purpose of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementspurchasing or carrying any margin stock.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Sources: Credit Agreement (Tc Pipelines Lp)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not contravene (ai) contravene the terms of the Borrower’s Organization Documents; (b) conflict with charter or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or by-laws, (ii) any order, injunction, writ or decree of law in any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); material respect or (diii) violate any Law applicable to contractual restriction binding on or affecting the Borrower and the AmendmentBorrower, except, except in the case of this clause (b) or (d) onlyiii), as would to the extent such contravention could not reasonably be expected to have result in a Material Adverse Effect.
(bc) The Amendment 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 (except for such approvals, notices or filings which are obtained on or before the Effective Date, have been disclosed in writing to the Administrative Agent, and remain in full force and effect) is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes to be delivered by it.
(d) This Agreement has been been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except to the extent as the enforceability thereof may be limited by the effect of any applicable Debtor Relief Laws bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by equitable general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingequity.
(ce) The Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, 2012, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of PricewaterhouseCoopers LLC, independent public accountants, and the Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30, 2013, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the six months then ended, duly certified by the chief financial officer, treasurer or controller of the Borrower, copies of which have been furnished to each Lender, fairly present, subject, in the case of said balance sheet as at June 30, 2013, and said statements of income and cash flows for the six months then ended, to year-end audit adjustments, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 2012, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect 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) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Loan 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) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) No approvalwritten information, consent, exemption, authorization, exhibit or report other action by, than projections and information of a general economic or notice to, general industry nature furnished by or filing with, any Governmental Authority on behalf of the Borrower to the Administrative Agent or any other Person is necessary or required Lender in connection with the execution, delivery or performance by, or enforcement against, the Borrower negotiation and syndication of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted Agreement or pursuant to the Amendment terms of this Agreement contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading as of the date made, in light of the circumstances in which the same were made.
(j) The Borrower is Solvent on a consolidated basis.
(k) (i) No Covered Entity is a Sanctioned Person and (cii) approvalsno Covered Entity, consentseither in its own right or through any third party, exemptionsengages in any dealings or transactions prohibited by any Anti-Terrorism Law, authorizationsexcept, or other actionsin the case of this clause (ii), notices or filings to the failure to procure which would extent that it could not reasonably be expected to have result in a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Representations and Warranties of the Borrower. The To induce the Agent, the Lenders and the Swingline Lender to enter into this Amendment, the Borrower represents and warrants to each of them as follows:follows as of the date hereof (and assuming the effectiveness of this Amendment):
(a) The execution, delivery No Default or Event of Default has occurred and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.continuing;
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the representations and warranties contained made or deemed made by the Borrower and each Restricted Subsidiary in each of the Credit Loan Documents to which it is a party, are true and correct in all material respects with the same force and effect as if made on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer expressly relate solely to an earlier date, date (in which case they shall be such representations and warranties were true and correct in all material respects accurate on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), date) and except that the representations for changes in factual circumstances specifically and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of expressly permitted under the Credit Agreement and except for changes that have been disclosed in filings made by the Borrower with the Securities and Exchange Commission since the time such representations and warranties were made;
(c) The Borrower and the Restricted Subsidiaries have the right and power, and each has taken all necessary action to authorize it, to execute, deliver and perform this Amendment and all of the other documents, instruments and agreements being executed by the Borrower or any Restricted Subsidiary in connection with any of the foregoing (collectively, the "Amendment Documents") to the date extent such Person is a party thereto, and, with respect to the Borrower, to perform the Credit Agreement as amended by this Amendment, in each case in accordance with their respective terms. This Amendment and the other Amendment Documents to which the Borrower or any Restricted Subsidiary is a party have been duly executed and delivered by the duly authorized officers of the Borrower and its Restricted Subsidiaries, as the case may be, and each of this Amendment, such financial statements.other Amendment Documents and the Credit Agreement as amended by this Amendment is a legal, valid and binding obligation of the Borrower and each Restricted Subsidiary a party thereto enforceable against such Person in accordance with its respective terms except as may be limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity; and
(ed) No Default The execution and delivery of this Amendment, such other Amendment Documents, and the performance of each of this Amendment, such other Amendment Documents and the Credit Agreement as amended by this Amendment, in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice, or Event of Default shall exist immediately prior to and after giving effect to otherwise;
(i) this Amendment and require any Governmental Approval or violate any Applicable Law relating to the Borrower or any Subsidiary; (ii) conflict with, result in a breach of or constitute a default under the certificate or incorporation or the bylaws of the Borrower or any Credit Extension made Restricted Subsidiary, or any indenture, agreement or other instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or any of its representative properties may be bound; or (iii) result in connection herewithor require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or any Subsidiary except for Liens granted pursuant to, or contemplated by, the Collateral Agency Agreement.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The it is a port authority and a body corporate and politic organized and existing under the laws of the State of Ohio;
(b) it has duly accomplished all conditions necessary to be accomplished by it prior to the issuance and delivery of the State Assistance, and the execution and delivery of the Loan Documents to which it is a party;
(c) to the best of its knowledge, it is not in violation of or in conflict with any provisions of the laws of the State that would impair materially its ability to carry out its obligations as set forth in any Loan Document to which it is a party;
(d) it has full power and authority to execute, deliver and perform the Loan Documents to which it is a party, to grant security interests under the other Security Documents to which it is a party, and to enter into and carry out the transactions contemplated thereby. Such execution, delivery and performance by performance, and the grant of all security interests under the Security Documents, do not, and will not, violate any provision of law or any court order applicable to the Project, the Borrower, or the Governing Instruments of the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) do not, and will not, conflict with or result in a default, under any breach agreement or contravention of (i) any Contractual Obligation instrument to which the Borrower is a party or (ii) any order, injunction, writ or decree of any Governmental Authority by which it or any arbitral award to which the Borrower of its property or its Property assets is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendmentmay be bound. The Loan Documents have, exceptby proper action, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly authorized, executed and delivered by the Borrower. The Amendment constitutes and constitute legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its termssubject to bankruptcy, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws fraudulent conveyance and similar laws affecting creditors’ rights generally and by the application of equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.public policy;
(ce) No approval, no consent, exemptionapproval or authorization of or declaration, authorization, or other action by, or notice to, registration or filing with, with any Governmental Authority or nongovernmental person or entity, including any other Person creditor of the Borrower, is necessary or required in connection with the execution, delivery and performance of this Agreement or any of the Loan Documents other than the recordation of a UCC Financing Statement, except for consents, approvals or authorizations of or declarations or filings with any Governmental Authority or non-governmental person or entity that have been obtained or made;
(f) it has duly authorized the execution, delivery and performance of the Loan Documents to which it is a party and of the transactions contemplated thereunder;
(g) it will do all things in its power in order to maintain its existence or assure the assumption of its obligations under the Loan Documents to which it is a party by any successor public body;
(h) each Loan Document to which it is a party has been duly executed and delivered by the Borrower and, assuming the due authorization and execution of the applicable Loan Documents by the other parties thereto, all steps necessary to have been taken by the Borrower to constitute each Loan Document to which it is a party a legal, valid, binding and enforceable obligation of the Borrower, subject to bankruptcy, fraudulent conveyance and similar laws affecting creditors’ rights and the application of equitable principles and public policy, have been taken;
(i) the provision of financial assistance pursuant to the Financing Approval Documents and the Loan Documents has induced the Borrower to assist in the Provision of the Project, thereby creating new jobs or preserving existing jobs and employment opportunities and improving the economic welfare of the people of the State;
(j) there are no actions, suits or proceedings pending for which ▇▇▇▇▇▇▇▇ has been served notice or process or, to the best of Borrower’s knowledge, threatened in writing against or affecting the Borrower, which, if adversely determined, would individually or in the aggregate materially impair the ability of the Borrower to perform any of its obligations under the Loan Documents or adversely affect the financial condition of the Borrower;
(k) it is not in default under any of the Loan Documents, or in the payment of any indebtedness for borrowed money or under any agreement or instrument evidencing any such indebtedness, and no event has occurred which by notice, the passage of time or otherwise would constitute any such event of default provided that, no representation is made as to the payment of Borrower indebtedness or any agreement or instrument evidencing any such indebtedness where the source of payment of the indebtedness or performance byof the agreement or instrument is payments or performance required to be made to, or enforcement againstfor the benefit of, the Borrower by an unrelated third party under a financing lease, installment sale agreement or loan agreement or the property financed thereunder or proceeds of this Amendment property financed by the Borrower under such an arrangement;
(l) Borrower is not a party in interest to any plan defined or regulated under ERISA, and the assets of the Borrower are not “plan assets” of any employee benefit plan covered by ERISA or Section 4975 of the Code;
(m) Borrower is not a “foreign person” within the meaning of Section 1445 or 7701 of the Internal Revenue Code;
(n) Borrower has determined that the none of the Borrower nor any of the officers, directors, principals, employees or owners of the Borrower are on the list of Specially Designated Nationals and Blocked Persons promulgated by the United States Department of the Treasury and located on the internet at ▇▇▇▇▇://▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/policy-issues/financial- sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists;
(o) no representation or warranty of the Borrower contained in any of the Loan Documents, and no statement contained in any certificate, schedule, list, financial statement or other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant instrument furnished to the Amendment and Director by or on behalf of the Borrower (cincluding, without limitation, the Application) approvals, consents, exemptions, authorizationscontains any untrue statement of a material fact when made, or other actions, notices omits to state a material fact necessary to make the statements contained herein or filings the failure to procure which would therein not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this Amendment, the misleading when made. All representations and warranties made by the Borrower in any of the Loan Documents, and any statement contained in each any certificate, schedule, list, financial statement or other instrument furnished to the Director by or on behalf of the Credit Documents Borrower (including, without limitation, the Application) are true hereby incorporated herein by reference thereto; provided that, as to any matters involving the HOFV Complex or the Project, including without limitation, its condition, cost, funding, operation or prospects, or involving the TDD Bonds Beneficiary or the Guarantor and correct in all material respects their respective condition, financial or otherwise, function, operation, performance or prospects, any representation or warranty made by the Borrower is based exclusively on and as of the date hereof as though made on and as of such date except to the extent that such qualified by information, representations and warranties specifically refer made by the TDD Bonds Beneficiary and the Guarantor as to an earlier datethose matters, in which case they the Borrower having not made any independent investigation; and
(p) all proceeds of the State Assistance shall be true and correct in all material respects on and as used for the payment or reimbursement to the TDD Bonds Beneficiary of Allowable Costs relating to Provision of the Project. No part of any such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect proceeds shall be true and correct in all respects)knowingly paid to or retained by the Borrower or any partner, and except that the representations and warranties contained in Section 6.05 member, officer, shareholder, director or employee of the Credit Agreement shall be deemed to refer to Borrower as a fee, kick- back or consideration of any type. The Borrower has no identity of interest with any supplier, contractor, architect, subcontractor, laborer or materialman performing work or services or supplying materials in connection with the most recent financial statements furnished pursuant to Section 7.01(a) and (b) Provision of the Credit Agreement and to the date of such financial statementsProject.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Sources: Loan Agreement (Hall of Fame Resort & Entertainment Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The It has taken all necessary action to authorize the execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the this Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The This Amendment has been duly executed and delivered by the Borrower. The Amendment such Person and constitutes such Person’s legal, valid and binding obligations of the Borrowerobligation, enforceable against the Borrower in accordance with its terms, except to the extent the as such enforceability thereof may be limited by applicable Debtor Relief Laws subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and by equitable (ii) general principles of law equity (regardless of whether enforcement such enforceability is sought considered in equity a proceeding at law or at law) and implied covenants of good faith and fair dealingin equity).
(c) No consent, approval, consent, exemption, authorizationauthorization or order of, or other action byfiling, registration or notice to, or filing qualification with, any Governmental Authority court or any other Person governmental authority or third party is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower by such Person of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)Amendment.
(d) After giving effect to this Amendment, the The representations and warranties contained set forth in each Article V of the Credit Documents Agreement are (i) with respect to representations and warranties that contain a materiality qualification, true and correct as of the date hereof (except for those which expressly relate to an earlier date, which shall be true and correct as of such date), and (ii) with respect to representations and warranties that do not contain a materiality qualification, true and correct in all material respects on and as of the date hereof as though made on and as of such date (except to the extent that such representations and warranties specifically refer for those which expressly relate to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsdate), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after After giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default.
(if) The Collateral Documents continue to create a valid security interest in, and Lien upon, the Collateral, in favor of the Administrative Agent, for the benefit of the Lenders, which security interests and Liens are perfected in accordance with the terms of the Collateral Documents and prior to all Liens other than Permitted Liens.
(g) The Obligations are not reduced or modified by this Amendment and (ii) are not subject to any Credit Extension made in connection herewithoffsets, defenses or counterclaims.
Appears in 1 contract
Representations and Warranties of the Borrower. The As an inducement to the Lenders, the Issuing Bank and the Administrative Agent to enter into this Amendment, the Borrower hereby represents and warrants that, on and as followsof the date hereof:
(aA) The representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct, except for (1) representations and warranties that expressly relate to an earlier date, which remain true and correct as of said earlier date, and (2) representations and warranties that have become untrue or incorrect solely because of changes permitted by the terms of the Credit Agreement and the other Loan Documents, and
(B) Both before and after giving effect to this Amendment and the transactions contemplated hereby, no Default or Event of Default has occurred and is continuing.
(C) The Borrower has the requisite corporate power and authority to execute and deliver this Amendment and to enter into and perform its obligations hereunder and under the Credit Agreement (as modified hereby). Each of the Subsidiary Guarantors has the requisite corporate or other organizational power and authority to execute and deliver the Guarantor Consent. The execution, delivery and performance (i) by the Borrower of this Amendment and the Amendment has Credit Agreement (as modified hereby) and the transactions contemplated hereby and thereby and (ii) by the Subsidiary Guarantors of the Guarantor Consent, in each case, have been duly authorized approved by all necessary corporate or other organizational action of such Person, and does not (a) contravene no other corporate or other organizational proceedings on the terms part of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation each such Person are necessary to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effectconsummate such transactions.
(bD) The This Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid Guarantor Consent has been duly executed and binding obligations delivered by each of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles Subsidiary Guarantors. Each of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement againstthis Amendment, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effectGuarantor Consent and, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After after giving effect to this Amendment, the representations Credit Agreement and warranties contained the other Loan Documents, (i) is the legal, valid and binding obligation of each Credit Party party hereto and thereto, enforceable against such Credit Party in each accordance with its terms, and (ii) is in full force and effect. Neither the execution, delivery or performance of this Amendment or of the Guarantor Consent or the performance of the Credit Documents are true and correct in all material respects on and Agreement (as modified hereby), nor the consummation of the date hereof transactions contemplated hereby or thereby, will adversely affect the validity, perfection or priority of the Administrative Agent's Lien on any of the Collateral or its ability to enforce its rights and remedies with respect thereto. This Amendment is effective to amend the Credit Agreement as though provided therein (assuming the due authorization, execution and delivery of this Amendment by each Lender party hereto).
(E) All necessary consents, approvals and authorizations of, filings with and acts by or with respect to all Governmental Authorities and other Persons required to be obtained, made on or taken in connection with the execution, delivery, performance, validity or enforceability of this Amendment, the Guarantor Consent and the Credit Agreement (as modified hereby), or otherwise in connection with the transactions contemplated hereby and thereby, have been obtained, made or taken and remain in effect.
(F) The execution and delivery of such date this Amendment and the Guarantor Consent, the transactions contemplated by this Amendment and by the Credit Agreement (as modified hereby), the performance by the Borrower of its obligations hereunder and under the Credit Agreement (as modified hereby) and the performance by the Subsidiary Guarantors of their respective obligations under the Guarantor Consent (i) do not conflict with or violate any Requirement of Law or any Contractual Obligation of the Borrower or any Subsidiary of the Borrower, except to the extent that any such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality violation or reference to conflict will not have a Material Adverse Effect shall be true and correct in all respects)Effect, and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) do not conflict with, constitute a default or require any Credit Extension made consent under, or result in connection herewiththe creation of any Lien upon any property or assets of the Borrower or any Subsidiary of the Borrower pursuant to any Contractual Obligation of the Borrower or such Subsidiary (other than Liens in favor of the Administrative Agent, the Lenders and the Issuing Bank), except to the extent that any such conflict or default or the failure to obtain any necessary consent will not have a Material Adverse Effect.
Appears in 1 contract
Sources: Credit Agreement (Symbion Inc/Tn)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a limited partnership duly formed and validly existing under the laws of the State of Delaware, is qualified to do business and is in good standing in all other states in which such qualification and good standing are necessary in order for the Borrower to conduct its business and own its property as conducted and owned in such states, except in such states where failure to qualify to do business would not have a materially adverse effect on the business operations or financial condition of the Borrower, has all requisite power and authority to conduct its business, to own its property and to execute, deliver and perform all of its obligations under this Agreement and the other Advance Documents, has the requisite corporate power and authority and the legal right to own, pledge, mortgage or otherwise encumber the Collateral, and to conduct its business as now and proposed to be conducted, and has all licenses, permits, consents or approvals from or by, and has made all filings with, and has given all notices to, all Governmental Authorities having jurisdiction, to the extent they are material to such ownership, operation and conduct.
(b) The General Partner is a corporation duly organized and existing in good standing under the laws of the State of Delaware, is qualified to do business and is in good standing in all other states in which such qualification and good standing are necessary in order for the General Partner to conduct its business and own property as conducted and owned in such states, except in such states where failure to qualify to do business would not have a materially adverse effect on the business operations or financial condition of the Borrower, and has all requisite power and authority to conduct its business, to own its property and to execute and deliver this Agreement and the other Advance Documents as general partner and agent of the Borrower, and to execute, deliver and perform all of its obligations under the other Advance Documents to which it is a party.
(c) The execution, delivery and performance by the Borrower and the General Partner of this Agreement, the Amendment has Revolving Loan Notes, the Security Agreement, the Assignment Agreement, the Servicing Agreement, and each Lock-Box Agreement are within the Borrower's powers, have been duly authorized by all necessary corporate or other organizational action action, and does do not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party Borrower's partnership agreement or (ii) any orderlaw or contractual restriction binding on, injunctionor affecting, writ the Borrower.
(d) No authorization or decree approval or other action by, and no notice to or registration of or filing with, any Governmental Authority or any arbitral award to which the Borrower regulatory body or its Property is subject; (c) result in the creation holder of any Lien (other than Permitted Liens); Indebtedness is required for the due execution, delivery and performance by the Borrower, or (d) violate any Law applicable to insure the Borrower legality, validity, binding effect or enforceability of, this Agreement, the Revolving Loan Notes, the Security Agreement and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse EffectServicing Agreement.
(be) The Amendment has been duly executed This Agreement, the Security Agreement, the Assignment Agreement and the Servicing Agreement are, and the Revolving Loan Notes when delivered by the Borrower. The Amendment constitutes hereunder will be, legal, valid and binding obligations of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(cf) No approval, consent, exemption, authorization, There are no judgments or other judicial or administrative orders outstanding against the Borrower nor is there any pending or, to the best knowledge of the Borrower, threatened action byor proceeding affecting the Borrower before any court, governmental agency or notice toarbitrator, which may materially adversely affect the financial condition or filing withoperations of the Borrower or which purports to affect the legality, any Governmental Authority validity or enforceability of this Agreement, the Revolving Loan Notes, the Security Agreement, the Assignment Agreement, the Servicing Agreement or any Lock-Box Agreement.
(g) The Borrower is not in violation of any law, rule, regulation, order, writ, judgment, decree, determination or award applicable to it or any indenture, lease, loan or other Person agreement to which it is necessary a party or required in connection with the execution, delivery by which it or performance by, its assets may be bound or enforcement againstaffected, the Borrower violation of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not may reasonably be expected to have a Material Adverse Effectmaterial adverse effect upon the ability of the Borrower to perform any of its obligations under this Agreement or a material adverse effect upon the ability of the Borrower to perform any of their respective obligations the other documents related thereto to which it is party.
(h) No proceeds of any Advance will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(i) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation G 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.
(j) The principal place of business and chief executive office of the Borrower and the office where the Borrower keeps all of its records are located at the address of the Borrower referred to in Section 7.2 (or at such other locations as to which the notice and other requirements specified in Section 5.1(d) shall have been satisfied).
(dk) After giving effect to this AmendmentThe names and addresses of all the lock-box banks, together with the representations and warranties contained in each account number of the Credit Documents Collection Account, of the Borrower at such lock-box banks, are true specified in Schedule I hereto (which shall be deemed to include any other lock-box banks or Collection Account as to which the notice and correct other requirements specified in the Servicing Agreement have been satisfied).
(l) Except as set forth on Schedule VI, neither the Borrower nor any of its ERISA Affiliates has maintained or participated in any Plan during the past six (6) years. With respect to any such Plan, (i) such Plan complied and complies in all material respects on with all applicable requirements of law and regulations, (ii) no Reportable Event has occurred with respect to any such Plan, (iii) no such Plan has been terminated, and (iv) no funding deficiency has occurred in respect of any such Plan, except, in each case, where the occurrence of any of the foregoing could not be reasonably expected to result in liability to the Borrower in excess of $50,000.
(m) The balance sheets and statements of income and cash flows of the Borrower as of December 31, 1996 (i) have been prepared in accordance with GAAP, and (ii) are true and complete and present fairly the date hereof as though made on respective financial condition and as results of such date operations of the Borrower, and said balance sheets accurately reflect the all of the respective liabilities, including contingent liabilities of the Borrower.
(n) The Borrower has filed all federal, state and local tax returns which it is required by Law to file and has paid all taxes, assessments and other governmental charges due in respect of its respective returns, except to the extent that any such representations and warranties specifically refer to an earlier datetaxes, assessments or other governmental charges are being contested in which case they shall be true and correct in all material respects on good faith and as to which the Borrower has set aside on its books adequate reserves and in respect of which no Liens have attached to or been filed against the Collateral. There are no agreements or waivers extending the statutory period of limitations applicable to any federal income tax return of the Borrower for any period.
(o) Except as described in Schedule II hereto, the Borrower is not a party to any material lease, contract, agreement, understanding or commitment of any kind (including without limitation all agreements which, if breached, could directly or indirectly have a Material Adverse Effect), and to the best of the Borrower's knowledge, (a) all parties (including the Borrower) to all such earlier date material leases, contracts, agreements, understandings and commitments, have complied with the provisions thereof, (provided that representations b) no such party (including the Borrower) is in default under any provision thereof, and warranties that are qualified by materiality (c) no event has occurred which, but for the giving of notice or reference the passage of time, or both, would constitute a default thereunder.
(p) Neither this Agreement nor any other Advance Document to which the Borrower is a party, or any certificate or statement furnished to the Agent, the Servicing Agent or any Lender in connection herewith contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein not misleading. There is no fact known to the Borrower which has or may have a Material Adverse Effect shall be true which has not been set forth in this Agreement or in the other Advance Documents, certificates and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer statements furnished to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of Agent, the Credit Agreement and to Servicing Agent or any Lender in connection with the date of such financial statementstransactions contemplated hereby.
(eq) No There has occurred no event which constitutes a Potential Default or an Event of Default shall exist immediately prior Default.
(r) The Borrower is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the making of the Advances and the use of the proceeds thereof by the Borrower will not violate any provision of said Act, or any rule, regulation or order issued by the Securities and Exchange Commission thereunder.
(s) The Borrower has good, indefeasible, and merchantable title to and after giving effect to (i) this Amendment ownership of the Collateral, free and (ii) any Credit Extension made in connection herewithclear of all liens, claims, security interests, and encumbrances except those held by the Agent, and other Permitted Liens.
Appears in 1 contract
Sources: Revolving Credit Agreement (Wentworth J G & Co Inc)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The executionBorrower and each of its Subsidiaries is duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment jurisdiction of its organization and has been duly authorized by all necessary corporate or other requisite organizational action power and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation authority to own its properties, to conduct its business as now being conducted and to execute, deliver and perform each Loan Document to which the Borrower it is party or (ii) is to be a party, except for any orderfailures to be so organized, injunctionexisting, writ qualified to do business or decree of any Governmental Authority in good standing or any arbitral award to which the Borrower have such power and authority as would not, individually or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendmentaggregate, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has execution, delivery and performance by the Borrower of each Loan Document and the consummation of the transactions contemplated hereby (including, without limitation, each Borrowing hereunder and the use of the proceeds thereof) and the transactions contemplated thereby (i) are within the Borrower's corporate power, (ii) have been duly executed authorized by all necessary corporate action, and delivered by (iii) do not contravene (x) the Borrower. The Amendment constitutes legal's certificate of incorporation or by-laws, valid and (y) any law, rule, regulation, order, writ, injunction or decree, or (z) any contractual restriction under any material agreements binding obligations of the Borrower, enforceable against on or affecting the Borrower in accordance with its terms, except to or any Subsidiary or any other contractual restriction the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles contravention of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingwhich would have a Material Adverse Effect.
(c) No authorization, approval, consent, exemption, authorization, license or other action by, or and no notice to, to or filing with, any Governmental Authority governmental authority, regulatory body or any other Person is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment each Loan Document to which it is or is to be a party, or for the consummation of the transactions contemplated hereby (other than including, without limitation, each Borrowing hereunder and the use of the proceeds thereof) and the transactions contemplated thereby, except (ai) as consents, authorizations, filings and notices which have already been obtained or made and are in full force and effect, (bii) filings to perfect security interests granted pursuant to the Amendment approvals that would be required under agreements that are not material agreements and (ciii) approvals, consents, exemptions, authorizations, or other actions, notices or filings as otherwise permitted by the failure to procure which would not reasonably be expected to have a Material Adverse Effect)Loan Documents.
(d) After giving effect to this AmendmentThis Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by the representations Borrower and warranties contained in each constitute legal, valid and binding obligations of the Credit Documents are true and correct Borrower enforceable against the Borrower in all material respects on and accordance with their respective terms, except as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier dateenforceability may be limited by any applicable bankruptcy, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality insolvency, reorganization, moratorium or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementssimilar law affecting creditors' rights generally.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Sources: Revolving Bridge Facility Credit Agreement (Halliburton Co)
Representations and Warranties of the Borrower. The Borrower Effective as of the Initial Closing Date and the date of each Advance, the Trust Company in its individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties hereto as follows, provided, that the representations in the following paragraphs (h), (j) and (k) are made solely in its capacity as the Borrower:
(a) It is a national banking association and is duly organized and validly existing and in good standing under the laws of the United States of America and has the power and authority to enter into and perform its obligations under the Trust Agreement and (assuming due authorization, execution and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to act as the Owner Trustee and to enter into and perform the obligations under each of the other Operative Agreements to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party and each other agreement, instrument and document to be executed and delivered by it on or before such Closing Date or the date of such Advance, as the case may be, in connection with or as contemplated by each such Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement to which it is or will be a party, either in its individual capacity or (assuming due authorization, execution and delivery of the Trust Agreement by the Borrower of Holders) as the Amendment Owner Trustee, as the case may be, has been duly authorized by all necessary corporate or other organizational action on its part and does not (a) contravene neither the execution and delivery thereof, nor the consummation of the transactions contemplated thereby, nor compliance by it with any of the terms and provisions thereof (i) does or will require any approval or consent of the Borrower’s Organization Documents; any trustee or holders of any of its indebtedness or obligations, (bii) conflict with does or will contravene any Legal Requirement relating to its banking or trust powers, (iii) does or will contravene or result in any breach of or contravention of (i) constitute any Contractual Obligation to which the Borrower is party default under, or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award other than pursuant to which the Borrower or its Property is subject; (cOperative Agreements) result in the creation of any Lien upon any of its property under, (other than Permitted Liens); A) its charter or by-laws, or (dB) violate any Law applicable indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit agreement or other agreement or instrument to the Borrower which it is a party or by which it or its properties may be bound or affected, which contravention, breach, default or Lien under clause (B) would materially and the Amendment, exceptadversely affect its ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or (iv) does or will require any Governmental Action by any Governmental Authority regulating its banking or trust powers;
(c) The Trust Agreement and, assuming the Trust Agreement is the legal, valid and binding obligation of the Holders, each other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or before such Closing Date or the date of clause (b) or (d) onlysuch Advance, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been the case may be, will be, duly executed and delivered by the Borrower. The Amendment constitutes Trust Company or the Owner Trustee, as the case may be, and the Trust Agreement and each such other Operative Agreement to which the Trust Company or the Owner Trustee, as the case may be, is a party constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligations of the Borrower, obligation enforceable against the Borrower Trust Company or the Owner Trustee, as the case may be, in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).terms thereof;
(d) After giving effect There is no action or proceeding pending or, to this Amendmentits knowledge, threatened to which it is or will be a party, either in its individual capacity or as the representations Owner Trustee, before any Governmental Authority that, if adversely determined, would materially and warranties contained adversely affect its ability, in each its individual capacity or as the Owner Trustee, to perform its obligations under the Operative Agreements to which it is a party or would question the validity or enforceability of any of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except Operative Agreements to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality it is or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.will become a party;
(e) It, either in its individual capacity or as the Owner Trustee, has not assigned or transferred any of its right, title or interest in or under the Lease or the Agency Agreement or its interest in any Property or any portion thereof, except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the proceeds of the Loans and Holder Advances shall exist immediately not be applied by the Owner Trustee, either in its individual capacity or as the Owner Trustee, for any purpose other than the purchase and/or lease of the Properties, the acquisition, installation and testing of the Equipment, the construction of Improvements, the payment of costs referred to in Section 5.1(a), Hard Costs and Soft Costs relating to the Properties and the payment of Transaction Expenses and the fees, expenses and other disbursements referenced in Sections 7.1(a) and 7.1(b) of this Agreement, in each case which accrue prior to the Rent Commencement Date with respect to a particular Property;
(h) Neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf has offered or sold any interest in the Trust Estate or the Notes, or in any similar security relating to a Property, or in any security the offering of which for the purposes of the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned securities to, or solicited any offer to acquire any of the same from, any Person other than, in the case of the Notes, the Agent and after giving effect the Lenders, and neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the Notes to the provisions of Section 5 of the Securities Act or require the qualification of any Operative Agreement under the Trust Indenture Act of 1939, as amended;
(i) The Owner Trustee's principal place of business, chief executive office and office where the documents, accounts and records relating to the transactions contemplated by this Amendment Agreement and each other Operative Agreement are kept are located at 79 South Main Street, Salt Lake City, Utah 84111;
(▇) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇nd does not have as one (1) of its important activities, the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System of the United States), and no part of the proceeds of the Loans or the Holder Advances will be used by it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions of Regulations T, U, or X of the Board of Governors of the Federal Reserve System of the United States;
(k) The Owner Trustee is not an "investment company" or a company controlled by an "investment company" within the meaning of the Investment Company Act;
(l) Each Property is free and clear of all Lessor Liens attributable to the Owner Trustee, either in its individual capacity or as the Owner Trustee;
(m) Except as authorized by the Holders and consented to by the Lenders pursuant to Section 2.2(b) of the Trust Agreement, the Owner Trustee, in its trust capacity, is not a party to any documents, instruments or agreements other than the Operative Agreements executed by the Owner Trustee, in its trust capacity; and
(n) Since the Initial Closing Date, there has been no occurrence or event which has had a material adverse effect on (i) the business, assets, properties, financial condition, operations, prospects or rights or interests of the Owner Trustee, which individually or in the aggregate has caused directly or indirectly net income (as determined in accordance with GAAP) for any fiscal quarter to be less than zero or (ii) the ability of the Owner Trustee to perform its obligations under any Credit Extension made in connection herewithOperative Agreement to which it is a party.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Amendment has Notes to be delivered by it (if any), and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate or other organizational action and does not (a) contravene on the terms part of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of , and do not contravene (i) any Contractual Obligation to which the Borrower is party Borrower’s charter or by laws or (ii) any order, injunction, writ or decree of any Governmental Authority law or any arbitral award to which material contractual restriction binding on the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the AmendmentBorrower, except, in the case of this clause (b) or (d) onlyii), as where such violations would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, authorization or approval or other action by, or and no notice to, to or filing with, any Governmental Authority governmental authority or any other Person regulatory body is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment Agreement or the Notes to be delivered by it (other than if any) except (ai) as those that have already been obtained and are in full force and effectobtained, filed or made or (bii) filings where the Borrower’s failure to perfect security interests granted pursuant to the Amendment and (c) receive, take or make such authorizations, approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this AmendmentThis Agreement has been, the representations and warranties contained in each of the Credit Documents are true Notes to be delivered by it (if any) when delivered hereunder will have been, duly executed and correct in all material respects on delivered by the Borrower. This Agreement is, and as each of the date hereof as though made on Notes (if any) when delivered hereunder will be, the legal, valid and as binding obligation of such date the Borrower enforceable against the Borrower in accordance with their respective terms except to the extent that such representations the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium and warranties specifically refer other laws affecting creditors’ rights generally and by equitable principles (regardless of whether enforcement in sought in equity or at law).
(i) The Consolidated balance sheet of the Borrower and its Subsidiaries as at January 31, 2018, and the related Consolidated statements of operations and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants, copies of which have been made available to an earlier dateeach Lender, in which case they shall be true and correct fairly present in all material respects the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on and as such date, all in accordance with generally accepted accounting principles consistently applied.
(ii) Since January 31, 2018, there has been no Material Adverse Change.
(f) There is no pending or, to the Borrower’s knowledge, threatened in writing, action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, against the Borrower or any of such earlier date its Subsidiaries before any court, governmental agency or arbitrator that (provided that representations and warranties that are qualified by materiality or reference i) could reasonably be expected to have a Material Adverse Effect shall or (ii) could reasonably be true and correct expected to adversely affect the legality, validity or enforceability of the Loan Documents. NYDOCS02/1172785 29
(g) The Borrower is not engaged in all respectsthe 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 except that no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the representations purpose of purchasing or carrying any margin stock.
(h) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) No written information, exhibit or report furnished by or on behalf of the Borrower to the Agent or any Lender in connection with the negotiation of this Agreement (other than Projections (as defined below), budgets, estimates and warranties other forward-looking information or information of a general economic or industry nature), when taken together with the Borrower’s filings with the Securities and Exchange Commission, contained when furnished any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading. Any projections or pro forma financial information contained in Section 6.05 such information, exhibits or reports (the “Projections”) are based upon good faith estimates and assumptions believed by the Borrower to be reasonable at the time made, it being recognized by the Lenders that such projections and pro forma information are not to be viewed as facts and that actual results during the period or periods covered thereby may differ from the projected or pro forma results (it being understood that forecasts and projections by their nature involve approximations and uncertainties).
(j) The Borrower has implemented and maintains in effect policies and procedures designed to promote compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and any agent of the Credit Agreement shall be deemed to refer Borrower or any Subsidiary that acts in any capacity in connection with, or benefits from, the credit facility established hereby with Anti-Corruption Laws and applicable Sanctions, and the Borrower and its Subsidiaries, and to the most recent financial statements furnished pursuant to Section 7.01(aknowledge of the Borrower, its officers, employees, directors and any agent of the Borrower or any Subsidiary that acts in any capacity in connection with, or benefits from, the credit facility established hereby, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) and the Borrower, any Subsidiary or any of their respective directors, officers or employees, or (b) to the knowledge of the Credit Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Borrowing, use of proceeds or other transaction contemplated by this Agreement and to the date of such financial statementswill violate Anti-Corruption Laws or applicable Sanctions.
(ek) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithThe Borrower is not an EEA Financial Institution.
Appears in 1 contract
Sources: Term Loan Agreement (Autodesk Inc)
Representations and Warranties of the Borrower. The Each of the Borrower and, if applicable, the Parent Guarantor hereby represents and warrants as follows:
(a) The execution, delivery and performance by the Borrower Each of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the AmendmentParent Guarantor (a) is duly organized or formed, exceptvalidly existing and, where applicable, in good standing under the case Laws of clause the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on its business and (ii) execute, deliver and perform its obligations under this Amendment, the Amended and Restated Credit Agreement and the other Loan Documents to which it is a party and (c) is duly qualified to do business and, where applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (da) only(other than with respect to any Loan Party or any Material Subsidiary), as would clause (b)(i) or clause (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) The . This Amendment has been duly executed and delivered by the Borrower. The duly authorized officers of the Borrower and the Parent Guarantor, and this Amendment constitutes and the Amended Credit Agreement constitute legal, valid and binding obligations of the Borrower, Borrower and the Parent Guarantor and are enforceable against the Borrower and the Parent Guarantor in accordance with its their terms, except subject to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and by equitable subject to general principles of law (equity, regardless of whether enforcement is sought considered in a proceeding in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to As of the Amendment date hereof and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After after giving effect to the terms of this Amendment, (i) no Default has occurred and is continuing, and (ii) the representations and warranties of the Loan Parties contained in each of the Credit Loan Documents are true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect or similar language, in which case such representation or warranty is true and correct in all respects) on and as of the date hereof as though made on and as of such date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects on and as (except in the case of such earlier date (provided that representations and warranties that are a representation or warranty qualified by materiality or reference to Material Adverse Effect shall be or similar language, in which case such representation or warranty is true and correct in all respects), ) as of such earlier date.
(c) The Borrower:
(i) reaffirms and except that admits the representations validity and warranties contained in Section 6.05 enforceability of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Amended Credit Agreement and to the date other Loan Documents and all of such financial statements.its Obligations thereunder;
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) agrees and admits that it has no valid defenses to or offsets against any of its Obligations to the Administrative Agent and the Lenders under the Amended Credit Extension made Agreement and the Notes; and
(iii) agrees and acknowledges that all references to the “Obligations” contained in connection herewiththe Loan Documents include the Obligations under the Amended Credit Agreement.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The executionBorrower is a corporation duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment has been duly authorized by all necessary corporate State of Delaware, and, except where the failure to do so, individually or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendmentaggregate, except, in the case of clause (b) or (d) only, as would could not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment , is duly qualified to do business and is in good standing as a foreign entity in each jurisdiction where the nature of its business requires such qualification, and has been duly executed full power and delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its termsauthority and, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings where the failure to procure which would do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect).
, holds all requisite governmental licenses (d) After giving effect including, without limitation, all licenses the Borrower is required to this Amendment, hold or maintain which are issued by the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respectsFederal Communications Commission), permits and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to other approvals required for (i) this Amendment the ownership and operation of its businesses and assets in the ordinary course and (ii) the due execution, delivery and performance by the Borrower of this Agreement and the Notes.
(b) The execution, delivery and performance by the Borrower of this Agreement and the Notes to be delivered by it, and the consummation of the financing transactions contemplated hereby, are within the Borrower's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Borrower's charter or by-laws, (ii) any Credit Extension made law applicable to the Borrower or (iii) any material contractual restriction contained in connection herewithany Material Contract binding on or affecting the Borrower.
(c) Except as have been obtained, 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 (provided that, solely with respect to any such third party, such authorization, approval, other action, notice or filing is material to business of the Borrower and its Subsidiaries, taken as a whole) is required for the due execution, delivery and performance by the Borrower of this Agreement or the Notes to be delivered by it.
Appears in 1 contract
Sources: Credit Agreement (Tribune Co)
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The executionBorrower is a corporation duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment State of Delaware, and is properly qualified to do business and in good standing in, and where necessary to maintain its rights and privileges has been duly authorized by all necessary corporate complied with the fictitious name statute of, every jurisdiction where the failure to maintain such qualification, good standing or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not compliance could reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has execution, delivery and performance by the Borrower of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly executed authorized by all necessary corporate action, and delivered by do not contravene (i) the Borrower. The Amendment constitutes legal, valid and ’s charter or by-laws or (ii) law or any material agreement binding obligations on the Borrower or (iii) to the best of the Borrower’s knowledge, enforceable against any other agreement binding on the Borrower which, as to any agreement referred to in accordance with its termsthis clause (iii), except could be reasonably expected to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealinghave a Material Adverse Effect.
(c) No approval, consent, exemption, authorization, authorization or approval or other action by, or and no notice to, to or filing with, (i) any Governmental Authority governmental authority or regulatory body or (ii) any other Person third party under any material agreement binding on the Borrower or (iii) to the best of the Borrower’s knowledge, under any other agreement binding on the Borrower, is necessary or required in connection with for the due execution, delivery or and performance by, or enforcement against, by the Borrower of this Amendment (Agreement or the Notes to be delivered by it, other than (a) as those authorizations or approvals or actions that have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings that have been made or, in the case of any third party under an agreement described in clause (iii), except to the extent that failure to procure which would obtain such authorization or approval or action, or make such notice or filing could not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect to this AmendmentThis Agreement has been, the representations and warranties contained in each of the Credit Documents are true Notes to be delivered by it when delivered hereunder will have been, duly executed and correct in all material respects on delivered by the Borrower. This Agreement is, and as each of the date hereof as though made on Notes when delivered hereunder will be, the legal, valid and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 binding obligation of the Credit Agreement shall be deemed Borrower enforceable against the Borrower in accordance with their respective terms, subject to refer applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) general principles of the Credit Agreement and to the date equity, regardless of such financial statementswhether considered in a proceeding in equity or at law.
(e) No Default The Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2007, and the related Consolidated statements of income and cash flows of the Borrower 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 Borrower and its Subsidiaries as at June 30, 2007, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer or Event treasurer of Default shall exist immediately the Borrower, copies of which have been furnished to each Lender, fairly present in all material respects, subject, in the case of said balance sheet as at June 30, 2007, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments and the absence of footnotes, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since March 31, 2007, there has been no Material Adverse Change, except as disclosed in public filings made with the Securities and Exchange Commission prior to and after giving effect August 8, 2007 or delivered to the Lenders prior to the date hereof.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, against the Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator that (i) this Amendment and is reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Credit Extension made Note or of the consummation of the transactions contemplated hereby, and there has been no material adverse change in connection herewiththe status, or financial effect on the Borrower or any of its Subsidiaries, of the Disclosed Litigation from that described in public filings with the Securities and Exchange Commission prior to August 8, 2007 or delivered to the Lenders prior to the date hereof.
(g) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used in a manner that would violate, or result in a violation of, such Regulation U.
(h) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) The Borrower is, individually and together with its Subsidiaries, Solvent. “Solvent” means, with respect to any Person on a particular date, that on such date (i) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person, (ii) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (iii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature and (iv) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Appears in 1 contract
Sources: Credit Agreement (Ca, Inc.)
Representations and Warranties of the Borrower. The In order to induce the Lenders and the Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto each Lender and the Administrative Agent that the following statements are true, correct and complete:
(ai) The General Partner has the requisite power and authority to execute, deliver and perform this Amendment No. 1 and the Credit Agreement as amended by this Amendment No. 1 (the “Amended Credit Agreement”, and together with this Amendment No. 1, collectively, the “Amendment Documents”) on behalf of the Borrower. The General Partner is the Person who has executed this Amendment No. 1 on behalf of the Borrower and is the sole general partner of the Borrower. Each Qualified Borrower has the requisite power and authority to execute, deliver and perform the Amendment Documents.
(ii) The execution, delivery and performance of each of the Amendment Documents by the Borrower and each Qualified Borrower and to which the Borrower or such Qualified Borrower is a party and the consummation of the Amendment has transactions contemplated thereby are within the Borrower’s partnership powers or such Qualified Borrower’s corporate powers, have been duly authorized by all necessary partnership, corporate or other organizational applicable action and does not (a) contravene and, in the terms case of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention General Partner acting on behalf of (i) any Contractual Obligation to which the Borrower is party in connection therewith, all necessary corporate action of such General Partner) and such authorization has not been rescinded. No other partnership or (ii) any order, injunction, writ corporate action or decree proceedings on the part of any Governmental Authority the Borrower or any arbitral award General Partner or the Qualified Borrowers is necessary to consummate such transactions.
(iii) Each of the Amendment Documents to which the Borrower or its Property a Qualified Borrower is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment party has been duly executed and delivered by on behalf of the Borrower or such Qualified Borrower and constitutes the Borrower. The Amendment constitutes ’s or such Qualified Borrower’s legal, valid and binding obligations of the Borrowerobligation, enforceable against the Borrower or such Qualified Borrower in accordance with its terms, except to the extent that the enforceability enforcement thereof or the availability of equitable remedies may be limited by applicable Debtor Relief Laws bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer, fraudulent conveyance or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and or by equitable general principles of law (equity, or by the discretion of any court in awarding equitable remedies, regardless of whether such enforcement is sought considered in a proceeding of equity or at law) , is in full force and implied covenants effect and all the terms, provisions, agreements and conditions set forth therein and required to be performed or complied with by the Company, the Borrower, the Qualified Borrowers, and the Borrower’s Subsidiaries on or before the Amendment Effective Date have been performed or complied with, and no Potential Event of good faith Default, Event of Default or breach of any covenant by any of the Company, the Borrower, the Qualified Borrowers or any Subsidiary of the Borrower exists thereunder, both before and fair dealingafter giving effect to this Amendment No. 1.
(civ) No approvalThe execution, consentdelivery and performance of each of the Amendment Documents to which the Borrower or a Qualified Borrower is a party do not and will not (A) conflict with the Organizational Documents of the Borrower or any Subsidiary of the Borrower or any Qualified Borrower, exemption(B) constitute a tortious interference with any Contractual Obligation of any Person or conflict with, authorizationresult in a breach of or constitute (with or without notice or lapse of time or both) a default under any Requirement of Law or Contractual Obligation of the Borrower, the General Partner, any Limited Partner, any Subsidiary of the Borrower, any Qualified Borrower, or any general or limited partner of any Subsidiary of the Borrower, or require termination of any such Contractual Obligation which may subject the Administrative Agent or any of the other action byLenders to any liability, (C) result in or require the creation or imposition of any Lien whatsoever upon any of the Property or assets of the Borrower, the General Partner, any Limited Partner, any Subsidiary of the Borrower, any Qualified Borrower or any general partner or limited partner of any Subsidiary of the Borrower, or (D) require any approval of shareholders of the Company or any general partner (or equity holder of any general partner) of any Subsidiary of the Borrower or any Qualified Borrower .
(v) The execution, delivery and performance of each of the Amendment Documents to which the Borrower or a Qualified Borrower is a party do not and will not require any registration with, consent or approval of, or notice to, or filing withother action to, with or by any Governmental Authority Authority, except filings, consents or any other Person is necessary notices which have been made, obtained or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)given.
(dvi) After giving effect to this Amendment, the The representations and warranties of the Borrower contained in each Article VII of the Credit Documents Agreement are and will be true and correct in all material respects on and as of the date hereof Amendment Effective Date to the same extent as though made on and as of such date dates (except to the extent that in those cases where such representations and warranties specifically refer representation or warranty expressly relates to an earlier date, in which case they shall be such representations and warranties were true and correct in all material respects on and as of such earlier date date, and except for (provided that x) changes in factual circumstances permitted hereunder and (y) representations and warranties that are qualified by materiality or reference to “materiality”, “Material Adverse Effect Effect” or similar language, which shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Representations and Warranties of the Borrower. The In order to induce the Banks and Administrative Agent to enter into this Amendment No. 1, the Borrower represents and warrants as followsto each Bank and Administrative Agent that the following statements are true, correct and complete:
(ai) The execution, delivery and performance by the Borrower of this Amendment No. 1, the Credit Agreement as amended by this Amendment has No. 1 (the “Amended Credit Agreement”), and any Notes executed in connection with this Amendment No. 1 (such Notes together with this Amendment No. 1 and the Amended Credit Agreement, collectively, the “Amendment Documents”) are within its partnership authority, have been duly authorized by all necessary corporate requisite action, and are not in conflict with the terms of any organizational instruments of such entity, or any instrument or agreement to which Borrower or General Partner is a party or by which Borrower, General Partner or any of their respective assets may be bound or affected;
(ii) The officers of General Partner executing this Amendment No. 1 and any other organizational action Amendment Documents required to be delivered by it on behalf of Borrower hereunder have been duly elected or appointed and does were fully authorized to execute the same at the time each such Amendment Document was executed;
(iii) The execution and delivery of, and the performance of the obligations required to be performed by Borrower under, this Amendment No. 1 and any other Amendment Documents do not and will not (a) contravene the terms of the Borrower’s Organization Documents; violate any provision of, or, except for those which have been made or obtained, require any filing (other than SEC disclosure filings), registration, consent or approval under, any Law (including, without limitation, Regulation U), order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it, except for such violations, or filings, registrations, consents and approvals which if not done or obtained would not likely cause a Material Adverse Change to occur, (b) conflict with or result in a breach of or constitute a default under or require any breach consent under any indenture or contravention of (i) loan or credit agreement or any Contractual Obligation other agreement, lease or instrument to which the Borrower is it may be a party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to by which the Borrower it or its Property is subject; properties may be bound or affected except for consents which have been obtained or which if not obtained are not likely to cause a Material Adverse Change to occur, (c) result in in, or require, the creation or imposition of any Lien (other than Permitted Liens); Lien, upon or with respect to any of its properties now owned or hereafter acquired which would likely cause a Material Adverse Change to occur, or (d) violate cause it to be in default under any Law applicable to the Borrower and the Amendmentsuch Law, exceptorder, in the case of clause (b) writ, judgment, injunction, decree, determination or (d) onlyaward or any such indenture, as agreement, lease or instrument which would not reasonably be expected to have likely cause a Material Adverse Effect.Change to occur; to the best of its knowledge, Borrower is in compliance with all Laws applicable to it and its properties where the failure to be in compliance would cause a Material Adverse Change to occur;
(biv) The Each of this Amendment has been duly executed No. 1 and delivered by the Borrower. The other Amendment constitutes Documents is a legal, valid and binding obligations obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent the enforceability thereof that such enforcement may be limited by applicable Debtor Relief Laws bankruptcy, insolvency and other similar laws affecting creditors’ rights generally and by equitable generally, as well as general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.equity;
(cv) No approval, consent, exemption, authorization, or This Amendment No. 1 and the other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with Amendment Documents have been duly executed and delivered by the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).Borrower;
(dvi) After giving effect to this Amendment, the The representations and warranties of the Borrower contained in each Article V of the Credit Documents Agreement are and will be true and correct in all material respects on and as of the date hereof Amendment Effective Date to the same extent as though made on and as of such date dates (except to the extent that in those cases where such representations and warranties specifically refer representation or warranty expressly relates to an earlier date, in which case they shall be such representations and warranties were true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects)date, and except for changes in factual circumstances permitted hereunder), provided that the representations and warranties contained in Section 6.05 5.20 of the Credit Agreement shall is qualified insofar as the Borrower will be deemed required to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.file this Amendment No. 1 in connection with its compliance with its periodic reporting obligations; and
(evii) No Default or Event of Default shall exist immediately prior to has occurred and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithis continuing.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
(a) The executionBorrower is a corporation duly organized, delivery validly existing and performance by in good standing under the Borrower laws of the Amendment State of Minnesota and has been duly authorized by all necessary corporate or other organizational action powers and does not (a) contravene the terms authority and all material licenses, authorizations, consents and approvals required to carry on its business as now conducted and each of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and each Significant Subsidiary is duly qualified as a foreign corporation, licensed and in good standing in each jurisdiction where qualification or licensing is required by the Amendmentnature of its business or the character and location of its property, exceptbusiness or customers, in where the case of clause (b) failure to be so qualified or (d) only, as would not licensed could reasonably be expected to have a Material Adverse Effect.
(b) The Amendment execution, delivery and performance by the Borrower of this Agreement and the Notes to be delivered by it, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene the Borrower’s charter or by-laws, (ii) violate any law, rule, regulation, order, writ, judgment, decree, determination or award applicable to the Borrower if such violation could reasonably be expected to have a Material Adverse Effect or (iii) violate or constitute a default under any contractual restriction binding on or affecting the Borrower if such violation or default could reasonably be expected to have a Material Adverse Effect or subject the Lenders, the Agent or the lead arranger to liability.
(c) No authorization or approval or other action by, and no notice to or filing (other than an immaterial authorization, approval, action, notice 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 Borrower of this Agreement or the Notes to be delivered by it, except for those that have been duly obtained, taken, given or made and are in full force and effect.
(d) This Agreement has been been, and each of the Notes to be delivered by it when delivered hereunder will have been, duly executed and delivered by the Borrower. The Amendment constitutes This Agreement is, and each of the Notes when delivered hereunder will be, the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its their respective terms, except subject to (i) the extent the enforceability thereof may be limited by effect of any applicable Debtor Relief Laws bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and by equitable generally, (ii) the effect of general principles of law equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at lawlaw and (iii) and an implied covenants covenant of good faith and fair dealing.
(ce) No approvalExcept as disclosed on Schedule 4.01(e), consent(i) the Consolidated balance sheet of the Borrower and its Subsidiaries as at December 31, exemption2004, authorizationand the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and (ii) the Consolidated balance sheet of the Borrower and its Subsidiaries as at March 31, 2005, which set forth the financial condition of the Borrower and is Subsidiaries, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, duly certified by the chief financial officer or other action bychief accounting officer of the Borrower, copies of which have been furnished to each Lender, fairly present in all material respects, subject, in the case of said balance sheet as at March 31, 2005, and said statements of income and cash flows for the three months then ended, to year-end audit adjustments and the absence of certain notes, the Consolidated financial condition of the Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Except as otherwise disclosed in the Public Filings, since December 31, 2004, there has been no Material Adverse Change.
(f) There is no pending or, to the knowledge of the Borrower, threatened action, suit, investigation, litigation or notice toproceeding, or filing withincluding, without limitation, under any Governmental Authority Environmental Law, affecting the Borrower or any other Person is necessary of its Subsidiaries before any court, governmental agency or required arbitrator that (i) except as disclosed in connection with the executionPublic Filings, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not could be reasonably be expected likely to have a Material Adverse Effect), and there shall have been no additional claim made in respect of any such action, suit, investigation, litigation or proceeding disclosed in the Public Filings that could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(dg) After giving effect to this Amendment, The Borrower is not engaged in the representations and warranties contained in each 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 Credit Documents are true Federal Reserve System), and correct 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 in all material respects violation of such Regulation U.
(h) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) Neither the Information Memorandum nor any written information distributed at the bank meeting on and as May 16, 2005 by or on behalf of the Borrower to the Agent or any Lender prior to the date hereof in connection with the negotiation of this Agreement, or delivered hereunder, when furnished and taken as though made on and as a whole, contains any material misstatement of such date except fact or omits to state any material fact necessary to make the extent statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to estimated or projected financial information, general industry information or forward looking statements, the Borrower represents only that such representations information was prepared in good faith based upon assumptions believed to be reasonable at the time and warranties specifically refer no assurance is given as to an earlier date, in which case they shall be true and correct in all material respects on and as of whether future events will vary from such earlier date (provided that representations and warranties that are qualified by materiality information or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Representations and Warranties of the Borrower. The Borrower represents and warrants as follows:
to Amneal, the Company and the Lender that: (ai) The executionthe Borrower is entitled to effect the instructions given in this Letter Agreement, delivery and that the entry into this Letter Agreement and the performance thereunder of the parties hereto does and will not breach or violate any of the terms or provisions of the LLC Agreement or the Stockholders Agreement; (ii) the Borrower is not an affiliate of the Lender; (iii) the Loan Agreement constitutes a bona fide extension of credit to the Borrower by the Lender and such extension of credit is with recourse to the Borrower; (iv) pursuant to the Loan Agreement and other any other agreement with respect to the Transactions, the Borrower of retains voting rights with respect to the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene Pledged Shares prior to any foreclosure upon the Pledged Shares after a default in accordance with the terms of the Borrower’s Organization DocumentsTransactions. Each of the parties hereto hereby represent and warrant to each other that: 1. each party has the full legal capacity and authority to enter into this Letter Agreement; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment 2. this Letter Agreement has been duly and validly executed and delivered by the Borrower. The Amendment each party and constitutes its legal, valid and binding obligations of the Borrowerobligation, enforceable against the Borrower in accordance with its terms; and 3. the parties hereto agree that the Lender shall not be deemed to be a “Member” under the LLC Agreement as a result of the Pledge. The parties hereto agree that the Lender shall not, except by reason of this Letter Agreement, the creation of the Lender’s rights, remedies and powers provided for herein, the exercise of any rights, remedies or powers as provided hereunder or for any other reason, be responsible or liable in any manner or to any extent for the obligations and liabilities of the Borrower relating to the LLC Agreement, the Stockholders Agreement or any other agreement by or among such parties, whether now existing or hereafter incurred, and all such obligations and liabilities shall at all times and in all events be the responsibilities and liabilities of the Borrower. Except to the extent Class A Shares constituting Collateral have been sold by the enforceability thereof may Lender upon foreclosure in accordance with the terms of the Transactions, the Borrower shall remain liable to observe and perform all the conditions and obligations to be limited observed and performed by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approvalit under the LLC Agreement, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority the Stockholders Agreement or any other Person is necessary agreement, document or required other instrument relating to the rights, remedies and powers granted hereunder, all in connection accordance with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained terms and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)conditions thereof.
(d) After giving effect to this Amendment, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewith.
Appears in 1 contract
Sources: Promissory Note and Collateral Agreement (Patel Gautam)
Representations and Warranties of the Borrower. The In order to induce the Bank to enter into this Agreement and to extend the Credit Facility to the Borrower, the Borrower hereby represents and warrants the following to the Bank as followsof the Agreement Date:
(a) The execution, delivery and performance by the Borrower of the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which is a corporation duly organized, validly existing and in good standing under the Borrower is party or laws of the State of Delaware, (ii) any orderhas all requisite corporate power, injunctionauthority and legal right to conduct its business as now conducted and as contemplated by its certificate of incorporation and by-laws, writ or decree of any Governmental Authority or any arbitral award to make borrowings hereunder, to execute, deliver and perform this Agreement and the Note, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the Borrower character of the properties owned or leased by it or in which the transaction of its Property is subject; business makes such qualifications necessary, except that this Section (ca)(iii) result shall not apply to qualifications the lack of which, singly or in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower aggregate, has not had and the Amendment, except, in the case of clause (b) or (d) only, as would will not reasonably be expected to have a Material Materially Adverse EffectEffect on the Borrower.
(b) The Amendment Borrower is not in violation of its by-laws or certificate of incorporation or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any material contract, indenture, mortgage, loan agreement or lease to which the Borrower is a party or by which it may be bound. The execution and delivery of either this Agreement or the Note and the incurrence of the obligations and the consummation of the transactions herein and therein contemplated will not conflict with, or constitute a breach of or default under, the Borrower's by-laws or certificate of incorporation or any material contractual restriction, instrument, indenture, mortgage, agreement or lease to which the Borrower is a party or by which it may be bound, or any law, administrative rule or regulation or court decree.
(c) Each of this Agreement and the Note has been duly authorized, executed and delivered by the Borrower. The Amendment , and each of this Agreement and the Note constitutes a legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against the Borrower in accordance with its terms, except to the extent the as such enforceability thereof may be limited by applicable Debtor Relief Laws bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ ' rights generally and or by equitable general principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)equity.
(d) After giving effect to No consent, approval, authorization, order, registration or qualification of or with any court, any regulatory authority or other governmental agency or body is required for the execution or delivery of this Amendment, Agreement or the representations and warranties contained in each Note by the Borrower or for the consummation of the Credit Documents are true and correct in all material respects on and as of transactions contemplated by this Agreement or the date hereof as though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in all respects), and except that the representations and warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsNote.
(e) No Default has occurred and is continuing.
(f) As of the date hereof, no material litigation, arbitration, administrative proceeding or Event any other proceeding or claim before any court, tribunal, governmental authority or any body or Person with judicial or quasi-judicial authority is presently pending or, or to the best of Default shall exist immediately prior the Borrower's knowledge, threatened against it or any of its assets which has a significant possibility of having a Materially Adverse Effect on the Borrower or its ability to and after giving effect perform under this Agreement or the Note.
(g) Except as disclosed to the Bank, or except as would not, either singly or in aggregate, reasonably be expected to have a Materially Adverse Effect on the Borrower, the Borrower has not violated or failed to comply with ERISA or any Environmental Laws.
(ih) this Amendment and (ii) any Credit Extension made in connection herewithThe Borrower is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Credit Agreement (Talbots Inc)
Representations and Warranties of the Borrower. The Borrower represents makes the following representations and warrants warranties as followsthe basis for its undertakings herein contained:
(a) The executionBorrower is a corporation duly organized and existing under the laws of the State of California, is in good standing in the State of California, has duly authorized, by proper action, the execution and delivery of this Loan Agreement and performance all other documents contemplated hereby to be executed by the Borrower of and has the Amendment power to enter into and consummate the transactions contemplated by this Loan Agreement and all other documents contemplated hereby to be executed by the Borrower. This Loan Agreement has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any orderauthorized, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien (other than Permitted Liens); or (d) violate any Law applicable to the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse Effect.
(b) The Amendment has been duly executed and delivered by the Borrower. The Amendment constitutes This Loan Agreement, when assigned to the Trustee pursuant to the Indenture, will constitute the legal, valid and binding obligations agreement of the Borrower, Borrower enforceable against the Borrower by the Trustee in accordance with its terms for the benefit of the Holders of the Bonds, and any rights of the Authority and obligations of the Borrower not so assigned to the Trustee constitute the legal, valid, and binding agreement of the Borrower enforceable against the Borrower by the Authority in accordance with its terms, ; except to the extent the enforceability thereof in each case as enforcement may be limited by applicable Debtor Relief Laws bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and generally, by the application of equitable principles of law (regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy.
(b) Neither the execution and delivery of this Loan Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or at lawcompliance with the terms and conditions hereof, conflicts with or results in a breach of any of the terms, conditions or provisions of the Borrower’s Articles of Incorporation or Bylaws or of any material actions or of any material agreement or instrument to which the Borrower is now a party or by which it is bound, or constitutes a default (with due notice or the passage of time or both) and implied covenants under any of good faith and fair dealingthe foregoing.
(c) No approvalconsent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, exemptionpermission, authorization, order or other action by, or notice tolicense of, or filing or registration with, any Governmental Authority governmental authority (except (i) with respect to any state securities or any other Person “blue sky” laws or (ii) for the construction, use or operation of the Project which are expected by the Borrower to be obtained prior to the construction, use or operation of the Project) is necessary or required in connection with the execution, execution and delivery of this Loan Agreement or performance bythe consummation of any transaction herein contemplated, or enforcement againstthe fulfillment of or compliance with the terms and conditions hereof, the Borrower of this Amendment (other than (a) except as have already been obtained or made and as are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(d) After giving effect There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending, or to this Amendment, the representations and warranties contained in each knowledge of the Credit Documents are true and correct in all material respects on and as Borrower, after reasonable investigation, threatened, against or affecting the Borrower or the assets, properties or operations of the date hereof as though made on and as of such date except Borrower which, if determined adversely to the extent that such representations and warranties specifically refer to an earlier dateBorrower or its interests, in which case they shall be true and correct in all would have a material respects on and as adverse effect upon the consummation of such earlier date (provided that representations and warranties that are qualified by materiality the transactions contemplated by, or reference to Material Adverse Effect shall be true and correct in all respects)the validity of, this Loan Agreement, and except the Borrower, to the best of its knowledge after reasonable inquiry, is not in default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default might have consequences that would materially and adversely affect the representations and warranties contained in Section 6.05 consummation of the Credit Agreement shall be deemed to refer to transactions contemplated by this Loan Agreement. The Borrower enjoys the most recent financial statements furnished pursuant to Section 7.01(a) peaceful and (b) undisturbed possession of all of the Credit Agreement premises upon which it is operating the Project, subject only to such rights of way, easements or other interests as do no materially and to adversely affect the date of such financial statementsBorrower’s operation and use thereof.
(e) The Costs of the Project are as set forth in the Tax Certificate dated the Date of Delivery and have been determined in accordance with standard engineering/construction and accounting principles. All the information and representations in the Tax Certificate are true and correct as of the date thereof.
(f) Upon completion, the Project will consist of various equipment and facilities described in Exhibit A.
(g) The Borrower has and will have title to or the right to use the property comprising the Project sufficient to carry out the purposes of this Loan Agreement.
(h) All certificates, approvals, permits and authorizations of applicable local governmental agencies, the State of California and the federal government which are necessary prior to the commencement of the construction, use or operation of the Project either have been obtained and continue in force or are expected by the Borrower to be obtained prior to the construction, use or operation of the Project.
(i) No Default or event has occurred and no condition exists which would constitute an Event of Default (as defined in the Indenture) or which, with the passage of time or with the giving of notice or both would become such an Event of Default.
(j) To the best of the knowledge of the Borrower, no member, officer, or other official of the Authority has any financial, ownership or managerial interest in the Borrower, any affiliate of the Borrower, this Loan Agreement or the Indenture or in the transactions contemplated by this Loan Agreement or the Indenture.
(k) The Borrower and all Persons anticipated by the Borrower to be an owner or operator of the Project or a portion thereof are engaged in operations within California that require financing pursuant to this Loan Agreement and the Act to aid and assist in the control, remediation or elimination of pollution of the environment of the State of California.
(l) The Project constitutes a “project” and the Borrower is a “participating party,” as such terms are defined in the Act.
(m) The Borrower is a “Small Business” as classified pursuant to Title 13 Code of Federal Regulations, Part 121 (1994 edition) or (together with its affiliates) employs no more than 500 employees.
(n) No disbursement to be paid or reimbursed from proceeds of the Bonds shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) have been previously paid or reimbursed from the proceeds of any Credit Extension made in connection herewithother Governmental Obligation, whether issued by the Authority or any other party.
Appears in 1 contract
Sources: Loan Agreement (SJW Corp)
Representations and Warranties of the Borrower. The Borrower represents hereby represents, as of the date hereof, and covenants, warrants and agrees as follows:
(a) The execution, delivery Borrower’s reasonable expectations respecting the use of ▇▇▇▇ proceeds are accurately set forth in the Tax Certificate and performance Agreement executed by the Borrower of on the Amendment has been duly authorized by all necessary corporate or other organizational action and does not (a) contravene the terms of the Borrower’s Organization Documents; (b) conflict with or result in any breach or contravention of (i) any Contractual Obligation to which the Borrower is party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its Property is subject; (c) result in the creation of any Lien Closing Date. No commercial property for lease (other than Permitted Liens); or (dthe Spaces) violate any Law applicable to is being financed by the Borrower and the Amendment, except, in the case of clause (b) or (d) only, as would not reasonably be expected to have a Material Adverse EffectBonds.
(b) The Amendment has been duly executed and statements made in the various certificates delivered by the Borrower. The Amendment constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent Authority or the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally Trustee are true and by equitable principles of law (regardless of whether enforcement is sought in equity or at law) and implied covenants of good faith and fair dealingcorrect.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with Not more than two percent (2%) of the execution, delivery or performance by, or enforcement against, proceeds of the Borrower Tax-exempt Bonds shall be applied to pay Cost of this Amendment (other than (a) as have already been obtained and are in full force and effect, (b) filings to perfect security interests granted pursuant to the Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect)Issuance.
(d) After giving effect to this AmendmentMoney on deposit in any fund or account in connection with the Bonds, whether or not such money was derived from other sources, shall not be used by or under the representations and warranties contained in each direction of the Credit Documents are true and correct Borrower in all material respects on and as a manner which would cause the Tax-exempt Bonds to be “arbitrage bonds” within the meaning of Section 148 of the date hereof as though made on Code, and as the Borrower specifically agrees that the investment of money in any such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they fund shall be true and correct in all material respects on and restricted as of such earlier date (provided that representations and warranties that are qualified by materiality or reference may be necessary to Material Adverse Effect shall be true and correct in all respects), and except that prevent the representations and warranties contained in Section 6.05 of Tax-exempt Bonds from being “arbitrage bonds” under the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statementsCode.
(e) No Default The Borrower will not take or Event omit to take, as is applicable, any action if such action or omission would in any way cause the proceeds from the sale of Default the Bonds to be applied in a manner contrary to the requirements of the Indenture, the Loan Agreement and this Regulatory Agreement.
(f) Borrower covenants and agrees that consistent with the tax exempt purpose of its sole member, pursuant to Section 501(c)(3) of the Code, that not less than forty percent (40%) of the Spaces in the Project (not including any Spaces required to be occupied by Very Low Income Residents under Section 5(a) herein) shall exist immediately prior to and after giving effect to (i) this Amendment and (ii) any Credit Extension made in connection herewithbe continuously occupied by Low Income Residents during the Qualified Project Period.
Appears in 1 contract
Sources: Regulatory Agreement and Declaration of Restrictive Covenants