Common use of Acknowledgments and Affirmations Clause in Contracts

Acknowledgments and Affirmations. A. Borrower, the Agent and the Lenders acknowledge and agree that capitalized terms used herein and without definition shall have the meanings assigned to them in the Loan Agreement. B. Borrower acknowledges and affirms that: 1. As of May 1, 2008, Borrower is legally and validly indebted to the Lenders under the Loan Agreement in the principal amount (including the face amount of outstanding Letters of Credit) of $20,744,894.24 with respect to the Revolving Loan, $0 with respect to the Term Loans, $0 with respect to the BV Loans and $1.795,714.86 (USD) with respect to the Mortgage Loan, plus interest, fees and charges accrued and accruing thereon and thereunder, and there is no defense, offset or counterclaim with respect to any such indebtedness or independent claim or action against the Agent or the Lenders. 2. Before giving effect to this Amendment, all indebtedness of Borrower to the Agent and the Lenders, whenever and however arising, is secured by a duly perfected, first priority security interest in the Collateral (or, in the case of QEP UK, Vitrex, Xxxxxxx Mexicana, S.A. de C.V., and P.R.C.I. SA a second priority security interest in the Collateral which is and shall be junior only to the liens described in subsection III (ii) of the Fourth Amendment and Waiver Agreement dated as of March 31, 2005, by and between the Borrowers, the Lenders and the Agent). C. Borrower represents and warrants that: 1. The resolutions previously adopted by the Board of Directors of each Borrower with respect to the Loan Agreement and provided to Lenders have not in any way been rescinded or modified and have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect, except to the extent that they have been modified or supplemented to authorize this Agreement and the documents and transactions described herein. 2. Each Borrower has the corporate power and authority to enter into this Agreement and the transactions contemplated herein, and each Borrower has taken all necessary corporate action to authorize this Agreement and the transactions contemplated herein. 3. Except as amended by this Agreement, all representations, warranties and covenants contained in the Loan Agreement, and in the schedules and exhibits attached thereto, are true and correct on and as of the date hereof, are incorporated herein by reference and, with respect to each Borrower organized under the laws of any jurisdiction within the United States or Canada are hereby remade. 4. No Borrower is currently in default under the Loan Agreement, and, except as otherwise consented to in writing by the Agent and the Lenders, no condition exists or has occurred which would constitute a default thereunder but for the giving of notice or passage of time, or both. D. The consummation of the transactions contemplated herein (a) is not prevented or limited by, nor does it conflict with or result in a breach of the terms, conditions or provisions of, any Borrower’s articles of incorporation or bylaws, or any evidence of indebtedness, agreement or instrument of whatever nature to which any Borrower is a party or by which any of them is bound, (b) does not constitute a default under any of the foregoing, and (c) does not violate any federal, state or local law, regulation or order of any court or agency which is binding upon any Borrower.

Appears in 2 contracts

Samples: Amendment Agreement, Amendment Agreement (Qep Co Inc)

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Acknowledgments and Affirmations. A. Borrower, the Agent and the Lenders acknowledge and agree that capitalized terms used herein and without definition shall have the meanings assigned to them in the Loan Agreement. B. Borrower acknowledges and affirms that: 1. As of May August 1, 2008, Borrower is legally and validly indebted to the Lenders under the Loan Agreement in the principal amount (including the face amount of outstanding Letters of Credit) of $20,744,894.24 27,939,772.22 (USD) with respect to the Revolving Loan, $0 with respect to the Term Loans, $0 with respect to the BV Loans Loan and $1.795,714.86 2,264,870.13 (USDCAD) $2,207,260.62(USD)) with respect to the Mortgage Loan, plus interest, fees and charges accrued and accruing thereon and thereunder, and there is no defense, offset or counterclaim with respect to any such indebtedness or independent claim or action against the Agent or the Lenders. 2. Before giving effect to this Amendment, all All indebtedness of Borrower to the Agent and the Lenders, whenever and however arising, is secured by a duly perfected, first priority security interest in the Collateral (or, in the case of QEP UK, Vitrex, Xxxxxxx Mexicana, S.A. de C.V., and P.R.C.I. SA a second priority security interest in the Collateral which is and shall be junior only to the liens described in subsection III (ii) of the Fourth Amendment and Waiver Agreement dated as of March 31, 2005, by and between the Borrowers, the Lenders and the Agent)Collateral. C. Borrower represents and warrants that: 1. The resolutions previously adopted by the Board of Directors of each Borrower with respect to the Loan Agreement and provided to Lenders have not in any way been rescinded or modified and have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect, except to the extent that they have been modified or supplemented to authorize this Agreement and the documents and transactions described herein. 2. Each Borrower has the corporate power and authority to enter into this Agreement and the transactions contemplated herein, and each Borrower has taken all necessary corporate action to authorize this Agreement and the transactions contemplated herein. 3. Except as amended by this Agreement, all representations, warranties and covenants contained in the Loan Agreement, and in the schedules and exhibits attached thereto, are true and correct on and as of the date hereof, are incorporated herein by reference and, with respect to each Borrower organized under the laws of any jurisdiction within the United States or Canada are hereby remade. 4. No Borrower is currently in default under the Loan Agreement, and, except as otherwise consented to in writing by the Agent and the Lenders, no condition exists or has occurred which would constitute a default thereunder but for the giving of notice or passage of time, or both. D. Guarantor hereby represents and warrants that, all representations, warranties and covenants contained in the Xxxxxxx Guarantee, and in the schedules and exhibits attached thereto, are true and correct on and as of the date hereof, are incorporated herein by reference and are hereby remade. E. The consummation of the transactions contemplated herein (a) is not prevented or limited by, nor does it conflict with or result in a breach of the terms, conditions or provisions of, any Borrower’s articles of incorporation or bylaws, or any evidence of indebtedness, agreement or instrument of whatever nature to which any Borrower is a party or by which any of them is bound, (b) does not constitute a default under any of the foregoing, and (c) does not violate any federal, state or local law, regulation or order of any court or agency which is binding upon any Borrower.

Appears in 1 contract

Samples: Thirteenth Amendment Agreement (Qep Co Inc)

Acknowledgments and Affirmations. A. Borrower, the Agent and the Lenders acknowledge and agree that capitalized terms used herein and without definition shall have the meanings assigned to them in the Loan Agreement. B. Borrower acknowledges and affirms that: 1. As of May 1April 16, 20082007, Borrower is legally and validly indebted to the Lenders under the Loan Agreement in the principal amount (including the face amount of outstanding Letters of Credit) of $20,744,894.24 22,336,967.96 with respect to the Revolving Loan, $0 1,999,999,92 with respect to the Term Loans, $0 with respect to the BV Loans and $1.795,714.86 (USD) $ 1,721,342,53 with respect to the Mortgage Loan, plus interest, fees and charges accrued and accruing thereon and thereunder, and there is no defense, offset or counterclaim with respect to any such indebtedness or independent claim or action against the Agent or the Lenders. 2. Before giving effect to this Amendment, all All indebtedness of Borrower to the Agent and the Lenders, whenever and however arising, is secured by a duly perfected, first priority security interest in the Collateral (or, in the case of QEP UK, Vitrex, Xxxxxxx Mexicana, S.A. de C.V., and P.R.C.I. SA a second priority security interest in the Collateral which is and shall be junior only to the liens described in subsection III (ii) of the Fourth Amendment and Waiver Agreement dated as of March 31, 200531,2005, by and between the Borrowers, the Lenders and the Agent). C. Borrower represents and warrants that: 1. The resolutions previously adopted by the Board of Directors of each Borrower with respect to the Loan Agreement and provided to Lenders have not in any way been rescinded or modified and have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect, except to the extent that they have been modified or supplemented to authorize this Agreement and the documents and transactions described herein. 2. Each Borrower has the corporate power and authority to enter into this Agreement and the transactions contemplated herein, and each Borrower has taken all necessary corporate action to authorize this Agreement and the transactions contemplated herein. 3. Except as amended by this Agreement, all representations, warranties and covenants contained in the Loan Agreement, and in the schedules and exhibits attached thereto, are true and correct on and as of the date hereof, are incorporated herein by reference and, with respect to each Borrower organized under the laws of any jurisdiction within the United States States, Canada, the Netherlands, Australia or Canada the United Kingdom, are hereby remade., and, with respect to each other Borrower, are hereby remade to the best of their knowledge, 4. No Borrower is currently in default under the Loan Agreement, and, except as otherwise consented to in writing by the Agent and the Lenders, no condition exists or has occurred which would constitute a default thereunder but for the giving of notice or passage of time, or both. D. The consummation of the transactions contemplated herein (a) is not prevented or limited by, nor does it conflict with or result in a breach of the terms, conditions or provisions of, any Borrower’s articles of incorporation or bylaws, or any evidence of indebtedness, agreement or instrument of whatever nature to which any Borrower is a party or by which any of them is bound, (b) does not constitute a default under any of the foregoing, and (c) does not violate any federal, state or local law, regulation or order of any court or agency which is binding upon any Borrower.,

Appears in 1 contract

Samples: Ninth Amendment Agreement (Qep Co Inc)

Acknowledgments and Affirmations. A. Borrower, the Agent and the Lenders acknowledge and agree that capitalized terms used herein and without definition shall have the meanings assigned to them in the Loan Agreement. B. a. Borrower acknowledges and affirms that: (1. As of May 1, 2008, ) Borrower is legally and validly indebted to the Lenders Bank under the Existing Note and the other Loan Documents. (2) All indebtedness, obligations and liabilities of the Borrower to the Bank arising under the Loan Agreement in the principal amount (including the face amount of outstanding Letters of Credit) of $20,744,894.24 with respect to the Revolving Loan, $0 with respect to the Term Loans, $0 with respect to the BV Loans and $1.795,714.86 (USD) with respect to the Mortgage Loan, plus interest, fees and charges accrued and accruing thereon and thereunder, and there is no defense, offset or counterclaim with respect to any such indebtedness or independent claim or action against the Agent or the Lenders. 2. Before giving effect to this Amendment, all indebtedness of Borrower to the Agent and the Lenders, whenever and however arising, is secured by by, among other things, a duly perfected, first priority security interest in deed of trust on the Collateral real and personal property owned by Borrower located at 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxx (orthe “Property”) pursuant to a certain Deed of Trust, in the case Assignment of QEP UKRents, Vitrex, Xxxxxxx Mexicana, S.A. de C.V., Security Agreement and P.R.C.I. SA a second priority security interest in the Collateral which is and shall be junior only to the liens described in subsection III (ii) of the Fourth Amendment and Waiver Agreement Fixture Filing dated as of March 31May 21, 20052008, by and between recorded in the BorrowersOfficial Records of Sonoma County on May 22, 2008 with Recording No. 2008-47610 (the Lenders and the Agent“Deed of Trust”). C. b. The Borrower represents and warrants that: (1. ) The resolutions previously adopted by the Board directors of Directors of each the Borrower with respect to the Existing Note and the other Loan Agreement Documents and provided to Lenders the Bank have not in any way been rescinded or modified and have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect, except to the extent that they have been modified or supplemented to authorize this Agreement and the documents and transactions described hereinherein and therein. (2. Each Borrower ) It has the corporate power and authority to enter into this Agreement and the transactions contemplated herein, and each Borrower has taken all necessary corporate company action to authorize this Agreement and the transactions contemplated herein. (3. Except ) No Default (as amended by this Agreement, all representations, warranties and covenants contained defined in the Existing Note) or Event of Default (as defined in the Deed of Trust) has occurred and is continuing under any Loan AgreementDocument, and in the schedules and exhibits attached thereto, are true and correct on and as of the date hereof, are incorporated herein by reference and, with respect to each Borrower organized under the laws of any jurisdiction within the United States no event or Canada are hereby remade. 4. No Borrower is currently in default under the Loan Agreement, and, except as otherwise consented to in writing by the Agent and the Lenders, no condition exists or has occurred or exists which would constitute a default thereunder Default or an Event of Default under any Loan Document but for the giving of notice or passage of time, or both. D. (4) It has no defense, offset, counterclaim or independent claim against the Bank with respect to the Loan or any of the Loan Documents, or any action previously taken or not taken by the Bank with respect thereto. (5) The Bank has fully performed all obligations to the Borrower which it may have had or has on and as of the date hereof. (6) The consummation of the transactions contemplated herein (a) is not prevented or limited by, nor does it conflict with or result in a breach of the terms, conditions or provisions of, any Borrower’s articles its certificate of incorporation or bylaws, or any evidence of material indebtedness, agreement or instrument of whatever nature to which any Borrower it is a party or by which any of them it is bound, (b) does not constitute a default under any of the foregoing, which default would have a material adverse effect on Borrower’s business, or its ability to pay the Obligations, as defined in the Deed of Trust, and (c) does not violate constitute a violation of any federal, state or local law, regulation or order of any court or agency which is binding upon any it, which violation would have a material adverse effect on Borrower’s business, or its ability to pay the Obligations, as defined in the Deed of Trust.

Appears in 1 contract

Samples: Master Reaffirmation Agreement and Amendment to Loan Documents (Sonomawest Holdings Inc)

Acknowledgments and Affirmations. A. Borrower, the Agent Borrower and the Lenders acknowledge and agree that capitalized terms used herein and without definition shall have the meanings assigned to them in the Loan Agreement. B. Borrower acknowledges and affirms that: 1. As of May 1, 20082006, Borrower is legally and validly indebted to the Lenders under the Loan Agreement in the principal amount (including the face amount of outstanding Letters of Credit) of $20,744,894.24 25,209,673.76 with respect to the Revolving Loan, $0 3,833,333.29 with respect to the Term Loans, $0 with respect to the BV Loans and $1.795,714.86 (USD) 1,914,146.94 with respect to the Mortgage Loan, plus interest, fees and charges accrued and accruing thereon and thereunder, and there is no defense, offset or counterclaim with respect to any such indebtedness or independent claim or action against the Agent or the Lenders. 2. Before giving effect to this Amendment, all All indebtedness of Borrower to the Agent and the Lenders, Lenders whenever and however arising, is secured by a duly perfected, first priority security interest in the Collateral (or, in the case of QEP UK, Vitrex, Xxxxxxx Mexicana, S.A. de C.V., and P.R.C.I. SA a second priority security interest in the Collateral which is and shall be junior only to the liens described in subsection III (ii) of the Fourth Amendment and Waiver Agreement dated as of March 31, 2005, by and between the Borrowers, the Lenders and the Agent). C. Borrower represents and warrants that: 1. The resolutions previously adopted by the Board of Directors of each Borrower with respect to the Loan Agreement and provided to Lenders have not in any way been rescinded or modified and have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect, except to the extent that they have been modified or supplemented to authorize this Agreement and the documents and transactions described herein. 2. Each Borrower has the corporate power and authority to enter into this Agreement and the transactions contemplated herein, and each Borrower has taken all necessary corporate action to authorize this Agreement and the transactions contemplated herein. 3. Except as amended by this Agreement, all representations, warranties and covenants contained in the Loan Agreement, and in the schedules and exhibits attached thereto, are true and correct on and as of the date hereof, are incorporated herein by reference and, with respect to each Borrower organized under the laws of any jurisdiction within the United States States, Canada, the Netherlands, Australia or Canada the United Kingdom, are hereby remade, and, with respect to each other Borrower, are hereby remade to the best of their knowledge. 4. No Except for those requirements which are being waived pursuant to Section III hereof, no Borrower is currently in default under the Loan Agreement, and, except as otherwise consented to in writing by the Agent and the Lenders, no condition exists or has occurred which would constitute a default thereunder but for the giving of notice or passage of time, or both. D. The consummation of the transactions contemplated herein (a) is not prevented or limited by, nor does it conflict with or result in a breach of the terms, conditions or provisions of, any Borrower’s articles of incorporation or bylaws, or any evidence of indebtedness, agreement or instrument of whatever nature to which any Borrower is a party or by which any of them is bound, (b) does not constitute a default under any of the foregoing, and (c) does not violate any federal, state or local law, regulation or order of any court or agency which is binding upon any Borrower.

Appears in 1 contract

Samples: Seventh Amendment and Waiver Agreement (Qep Co Inc)

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Acknowledgments and Affirmations. A. Borrower, the Agent Borrower and the Lenders acknowledge and agree that capitalized terms used herein and without definition shall have the meanings assigned to them in the Loan Agreement. B. Borrower acknowledges and affirms that: 1. As of May March 1, 20082005, Borrower is legally and validly indebted to the Lenders under the Loan Agreement in the principal amount (including the face amount of outstanding Letters of Credit) of $20,744,894.24 $ 22,243,181.14 with respect to the Revolving Loan, $0 $ 2,866,661.00 with respect to the Term Loans, $0 $ 0.00 with respect to the BV Loans and $1.795,714.86 (USD) CAD $ 2,322,024.02 with respect to the Mortgage Loan, plus interest, fees and charges accrued and accruing thereon and thereunder, and there is no defense, offset or counterclaim with respect to any such indebtedness or independent claim or action against the Agent or the Lenders. 2. Before giving effect to this Amendment, all All indebtedness of Borrower to the Agent and the Lenders, Lenders whenever and however arising, is secured by a duly perfected, first priority security interest in the Collateral (or, in the case of QEP UK, Vitrex, Xxxxxxx Mexicana, S.A. de C.V., and P.R.C.I. SA a second priority security interest in the Collateral which is and shall be junior only to the liens described in subsection III (ii) of the Fourth Amendment and Waiver Agreement dated as of March 31, 2005, by and between the Borrowers, the Lenders and the Agent). C. Borrower represents and warrants that: 1. The resolutions previously adopted by the Board of Directors of each Borrower with respect to the Loan Agreement and provided to Lenders have not in any way been rescinded or modified and have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect, except to the extent that they have been modified or supplemented to authorize this Agreement and the documents and transactions described herein. 2. Each Borrower has the corporate power and authority to enter into this Agreement and the transactions contemplated herein, and each Borrower has taken all necessary corporate action to authorize this Agreement and the transactions contemplated herein. 3. Except as amended by this Agreement, all representations, warranties and covenants contained in the Loan Agreement, and in the schedules and exhibits attached thereto, are true and correct on and as of the date hereof, are incorporated herein by reference and, with respect to each Borrower organized under the laws of any jurisdiction within the United States States, Canada, the Netherlands, Australia or Canada the United Kingdom, are hereby remade, and, with respect to each other Borrower, are hereby remade to the best of their knowledge. 4. No Except for those requirements which are being waived pursuant to Section III in this Agreement, no Borrower is currently in default under the Loan Agreement, and, except as otherwise consented to in writing by the Agent and the Lenders, no condition exists or has occurred which would constitute a default thereunder but for the giving of notice or passage of time, or both. D. The consummation of the transactions contemplated herein (a) is not prevented or limited by, nor does it conflict with or result in a breach of the terms, conditions or provisions of, any Borrower’s articles of incorporation or bylaws, or any evidence of indebtedness, agreement or instrument of whatever nature to which any Borrower is a party or by which any of them is bound, (b) does not constitute a default under any of the foregoing, and (c) does not violate any federal, state or local law, regulation or order of any court or agency which is binding upon any Borrower.

Appears in 1 contract

Samples: Fifth Amendment and Waiver Agreement (Qep Co Inc)

Acknowledgments and Affirmations. A. Borrower, the Agent Borrower and the Lenders acknowledge and agree that capitalized terms used herein and without definition shall have the meanings assigned to them in the Loan Agreement. B. Borrower acknowledges and affirms that: 1. As of May March 1, 20082005, Borrower is legally and validly indebted to the Lenders under the Loan Agreement in the principal amount (including the face amount of outstanding Letters of Credit) of $20,744,894.24 $ 22,243,181.14 with respect to the Revolving Loan, $0 $ 2,866,661.00 with respect to the Term Loans, $0 $ 0.00 with respect to the BV Loans and $1.795,714.86 (USD) CAD $ 2,322,024.02 with respect to the Mortgage Loan, plus interest, fees and charges accrued and accruing thereon and thereunder, and there is no defense, offset or counterclaim with respect to any such indebtedness or independent claim or action against the Agent or the Lenders. 2. Before giving effect to this Amendment, all All indebtedness of Borrower to the Agent and the Lenders, Lenders whenever and however arising, is secured by a duly perfected, first priority security interest in the Collateral (or, in the case of QEP UK, Vitrex, Xxxxxxx Mexicana, S.A. de C.V., and P.R.C.I. SA a second priority security interest in the Collateral which is and shall be junior only to the liens described in subsection III (ii) of the Fourth Amendment and Waiver Agreement dated as of March 31, 2005, by and between the Borrowers, the Lenders and the Agentbelow). C. Borrower represents and warrants that: 1. The resolutions previously adopted by the Board of Directors of each Borrower with respect to the Loan Agreement and provided to Lenders have not in any way been rescinded or modified and have been in full force and effect since their adoption to and including the date hereof and are now in full force and effect, except to the extent that they have been modified or supplemented to authorize this Agreement and the documents and transactions described describe herein. 2. Each Borrower has the corporate power and authority to enter into this Agreement and the transactions contemplated herein, and each Borrower has taken all necessary corporate action to authorize this Agreement and the transactions contemplated herein. 3. Except as amended by this Agreement, all representations, warranties and covenants contained in the Loan Agreement, and in the schedules and exhibits attached thereto, are true and correct on and as of the date hereof, are incorporated herein by reference and, with respect to each Borrower organized under the laws of any jurisdiction within with the United States States, Canada, the Netherlands, Australia or Canada the United Kingdom, are hereby remade, and, with respect to each other Borrower, are hereby remade to the best of their knowledge. 4. No Borrower is currently in default under the Loan Agreement, and, except as otherwise consented to in writing by the Agent and the Lenders, no condition exists or has occurred which would constitute a default thereunder but for the giving of notice or passage of time, or both. D. The consummation of the transactions contemplated herein (a) is not prevented or limited by, nor does it conflict with or result in a breach of the terms, conditions or provisions of, any Borrower’s articles of incorporation or bylaws, or any evidence of indebtedness, agreement or instrument of whatever nature to which any Borrower is a party or by which any of them is bound, (b) does not constitute a default under any of the foregoing, and (c) does not violate any federal, state or local law, regulation or order of any court or agency which is binding upon any Borrower.

Appears in 1 contract

Samples: Fourth Amendment and Waiver Agreement (Qep Co Inc)

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